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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                MATTHEW ELLIOT PETERSEN, Appellant.

                             No. 1 CA-CR 14-0679
                               FILED 1-5-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-428984-001
                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 Paul J. Prato
Counsel for Appellant
                            STATE v. PETERSEN
                            Decision of the Court



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Lawrence F. Winthrop and Judge Samuel A. Thumma joined.


K E S S L E R, Judge:

¶1             Matthew Elliot Petersen appeals his conviction for burglary
in the first degree, a class 2 felony. See Ariz. Rev. Stat. (“A.R.S.”) §§ 13-1507
(2010), -1508 (2010).1 Counsel for Petersen filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297
(1969), requesting that this Court search the record for fundamental error.
Petersen also filed a supplemental brief in propria persona requesting this
Court review four issues. After reviewing the entire record we conclude
the evidence is sufficient to support the verdict and sentence and there is
no fundamental error. Accordingly, we affirm.

               FACTUAL AND PROCEDURAL HISTORY2

¶2            The victim, MO, came home to discover his house had been
burglarized. In one of the rooms, a window was broken and partially slid
open, and there was glass all over the carpet along with a rock. As MO




1We cite the current version of applicable statutes unless revisions material
to this decision have occurred since the events in question.

2 Before trial, Petersen moved to obtain information related to any insurance

claim MO made in connection with the instant burglary, and for access to
inspect the crime scene. Petersen argued the insurance information was
necessary to rebut the State’s allegation of the amount of the stolen property
as an aggravating factor and may go to the issue of restitution. See A.R.S. §
13-701(D)(3) (Supp. 2015). After a hearing, the court denied the motion on
both bases determining that the requests were inconsistent with MO’s
victim’s rights. Neither issue was ever re-urged. Ultimately the State did
not pursue this aggravating factor, and the court did not sentence Petersen
in a way that accounted for the factor. Restitution was not sought or
ordered.



                                       2
                            STATE v. PETERSEN
                            Decision of the Court

walked around he discovered that his Ruger 9mm gun and other items
were missing.

¶3             MO called the police and Officer GN responded and
investigated the scene. GN concluded the broken window was the point of
entry into the home. GN was able to lift one good fingerprint from the
inside of the broken window.

¶4             AL, a forensic scientist at the crime lab latent print
comparative section, confirmed that the fingerprint taken by GN matched
Peterson. MO testified that he bought the approximately 4.5-year-old
foreclosed home “as is” from the bank in 2010 (about 3.5 years prior to the
trial), and he had to have his carpets and windows professionally cleaned
before he moved in. MO also testified that he has since had his windows
professionally cleaned twice and he has cleaned the windows himself as
well but that no other contractors had been inside the home.

¶5            CB, a general contractor, testified for the defense that Petersen
worked with him off and on for eight to ten years at CB’s flooring, electrical,
and plumbing company. CB said that he recalled doing carpet installation
work along with Petersen in a vacant house that he believed was MO’s
house about four years prior to trial. CB explained that they do not typically
wear gloves when doing work and that sometimes they open windows to
bring carpet inside or for ventilation. FR testified as an expert for the
defense in the area of fingerprint preservation. He testified that a
fingerprint could last on a surface for a long time, and that there is no way
of knowing when a fingerprint was left on a surface.

¶6            The jury received instructions consistent with the offense
charged in the indictment and the applicable law. The jury convicted
Petersen as charged.

¶7             After a trial on Petersen’s prior convictions, the superior court
found the convictions proven as alleged. After an aggravation/mitigation
hearing, the jury found the existence of two aggravating factors: expectation
of pecuniary value, A.R.S. § 13-701(D)(6), and physical, emotional, or
financial harm to the victim who testified at trial, A.R.S. § 13-701(D)(9). The
court found mitigating factors and sentenced Petersen as a category 3
offender (two historical priors), see A.R.S. § 13-703(C) (Supp. 2015) and
A.R.S. § 13-105(22)(d) (Supp. 2015), to a mitigated term of thirteen years’
imprisonment. A.R.S. § 13-703(C), (J); see also 2013-2014 Criminal Code
Sentencing Provisions at 1 (Non-dangerous, repetitive offenses), available
at



                                       3
                           STATE v. PETERSEN
                           Decision of the Court

http://www.azcourts.gov/Selfhelp/CriminalLaw/CriminalCodeSentenci
ngChart.aspx (last visited December 17, 2015). The court also awarded
Petersen 250 days of presentence incarceration credit.

¶8             The superior court granted Petersen a delayed appeal
pursuant to Arizona Rule of Criminal Procedure 32.1(f). Petersen’s appeal
is therefore timely and we have jurisdiction pursuant to Article 6, Section 9
of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031
(2010), and -4033(A)(1) (2010).

                               DISCUSSION

¶9            In an Anders appeal, we review the entire record for
fundamental error. State v. Richardson, 175 Ariz. 336, 339 (App. 1993).
Fundamental error is “error going to the foundation of the case, error that
takes from the defendant a right essential to his defense, and error of such
magnitude that the defendant could not possibly have received a fair trial.”
State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005) (quoting State v. Hunter,
142 Ariz. 88, 90 (1984)). To obtain a reversal, the defendant must also
demonstrate that the error caused prejudice. Id. at ¶ 20.

¶10            Petersen raises four main issues in his supplemental brief. In
issue (1) Petersen contends the evidence was insufficient because there was
no proof that MO owned the allegedly stolen items or that Petersen
took/possessed any of the items.3 Issue (2) also relates to the sufficiency of
the evidence because Petersen claims the lack of evidence to support the
conviction for first degree burglary, as well as mitigating factors
outweighing aggravating factors, renders his sentence excessive.

¶11           Petersen also contends in issues (3) and (4) that the prosecutor
committed misconduct by failing to disclose that MO’s house had been
previously burglarized and that the superior court committed error by
denying Petersen’s motion for information related to MO’s previous
insurance claims.



3 Petersen also claims that the value of the items was not established and
thus, charging Petersen with a higher class of crime was not justified.
However, the value of the items stolen is not relevant to whether burglary
is proven. Compare A.R.S. § 13-1802(G) (Supp. 2015) (classifying different
degrees of theft based on value of property stolen), with A.R.S. §§ 13-1507,
-1508 (classifying different degrees of burglary based on factors other than
value of items stolen).


                                      4
                            STATE v. PETERSEN
                            Decision of the Court

¶12          Petersen requests remand for an evidentiary hearing and/or
new trial and maintains that his sentence should be reduced.

I.     Sufficiency of the evidence of first degree burglary

¶13          On review, we view the facts in the light most favorable to
sustaining the jury’s verdict and resolve all inferences against the
defendant. State v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998). “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)).

¶14            Burglary in the first degree requires proof that Petersen: (1)
“enter[ed] or remain[ed] unlawfully in . . . a residential structure”; (2) “with
the intent to commit any theft . . . therein”; and (3) knowingly possess[ed] .
. . a deadly weapon”;4 (4) “in the course of committing any theft.”5 A.R.S.
§§ 13-1507(A) (second degree burglary), -1508(A) (first degree burglary).6

¶15           Here the only evidence linking Petersen to the burglary was
his fingerprint on the inside of the broken window which according to


4 The court did not use the phrase “deadly weapon,” in instructing on the
elements of first degree burglary and instead used “firearm,” but gave an
instruction regarding the definition of a firearm. The instructions were
correct because “‘[d]eadly weapon’ means anything designed for lethal use,
including a firearm.” A.R.S. § 13-105(15).

5 “‘In the course of committing’ means any acts that are performed by an
intruder from the moment of entry to and including flight from the scene.”
A.R.S. § 13-1501(7) (Supp. 2015). The court did not explicitly use the phrase
“in the course of committing” when instructing on the elements of first
degree burglary and instead simply used the definition itself with the first
degree burglary instruction.

6 The lesser included offense of burglary in the second degree is a class 3
felony and requires proof of the first two elements. A.R.S. § 13-1507.
Petersen maintains that he should have been convicted only of third degree
burglary (a class 4 felony) which requires proof of “entering or remaining
unlawfully in . . . a residential yard.” A.R.S. § 13-1506 (2010). The facts here
(i.e. Petersen’s fingerprint was found on the inside of a broken window to
MO’s home from which items were taken) do not support the potential
applicability of the third degree burglary statute.


                                       5
                            STATE v. PETERSEN
                            Decision of the Court

police officer testimony was the point of entry into the home. This is
sufficient evidence to infer that Petersen entered the home. A.R.S. § 13-
1501(3) (defining entry); State v. Coleman, 147 Ariz. 578, 580 (App. 1985)
(“The evidence of entry is the defendant’s fingerprints found on both sides
of a piece of glass of the same shape and size as the piece missing from the
victim’s broken window.”).

¶16            The fingerprint on the inside of the broken window is also
sufficient to determine Petersen had the intent to commit theft when he
entered. See State v. Malloy, 131 Ariz. 125, 130 (1981) (determining jury
“could have found that the [defendant] had the specific intent necessary to
commit burglary in the third degree from the fact that he broke the
window.”); State v. Taylor, 25 Ariz. App. 497, 499 (1976) (explaining that
intent to commit theft can be proven by circumstantial evidence and
inference of the intent necessary for conviction of burglary may be drawn
when unauthorized entry into the premises is gained by force); accord State
v. Kindred, 232 Ariz. 611, 614, ¶ 11 (App. 2013) (stating “a defendant’s forced
entry into a structure permits a jury to infer that [the] defendant had the
requisite specific intent for burglary.”); State v. Belyeu, 164 Ariz. 586, 591
(App. 1990) (citing cases and stating “[a] jury may infer the intent necessary
to commit burglary from the fact that [the defendant] gained entry by
breaking a window.”); Coleman, 147 Ariz. at 580 (explaining in case where
defendant’s fingerprints were on both sides of a piece of broken glass from
window that “[t]his kind of breaking and entry alone justifies an inference
of an intent to commit a theft of property inside.”).

¶17            Thus, the first two elements, intent to commit theft upon
entry, are satisfied. However, unlike lesser degrees of burglary, first degree
burglary requires proof that Petersen knowingly possessed a deadly
weapon “in the course of committing . . . [a] theft.” A.R.S. §§ 13-1508(A), -
1501(7). See supra footnotes 4-6. The offense of theft, and specifically the
elements of control and intent, A.R.S. §§ 13-1801 (Supp. 2015), -1802 (Supp.
2015), may be inferred from the breaking of the window, the fingerprint
evidence on burglarized private property, and the missing items. Coleman,
147 Ariz. at 580 (“Both the intent to deprive and the control required for a
theft conviction can be inferred from the unauthorized entry, the absence
of the victim’s possessions, the presence of defendant’s fingerprints in a
place inaccessible to the general public, and the absence of any other
explanation.”). In Coleman, we affirmed the defendant’s convictions for
theft and burglary even though none of the missing property was found in
the defendant’s possession or ever recovered and the only evidence linking
the defendant to the stolen items was a fingerprint on the glass of a broken
window. 147 Ariz. at 580-81.


                                      6
                            STATE v. PETERSEN
                            Decision of the Court

¶18            Contrary to Petersen’s contention there was no evidence he
possessed MO’s gun, Petersen’s fingerprint on the inside of the broken
window along with the missing gun and other items, permit an inference
that he stole the gun during the burglary and as such possessed a gun in
the course of committing theft. A reasonable juror could conclude Petersen
“knowingly possessed” MO’s gun, a deadly weapon, at some point during
the burglary. See A.R.S. § 13-1501(7) (defining in the course of committing
as between the time of entry and leaving the scene); A.R.S. § 13-1508(A)
(requiring proof the defendant knowingly possessed a deadly weapon);
A.R.S. § 13-105(15) (defining deadly weapon to include a firearm); see also
State v. Tabor, 184 Ariz. 119, 120 (1995) (explaining that possessing a deadly
weapon as loot during a burglary is sufficient to support a conviction for
first degree burglary).

¶19            Here the jury heard defense evidence suggesting that
Petersen may have left a fingerprint on the inside of MO’s window years
prior when he was doing work in the home with CB. It also heard evidence
that MO had his windows cleaned on multiple occasions since the time
Petersen would have been in the home and thereafter while living in the
home. It was up to the jury to consider and weigh the evidence and witness
credibility and to resolve any conflicts in the evidence. State v. Pike, 113
Ariz. 511, 514 (1976) (jury resolves conflicts and weighs witness credibility);
State v. Cid, 181 Ariz. 496, 500 (App. 1995) (jury weighs evidence).

¶20           This case is similar to State v. Carter, in which our supreme
court affirmed a burglary conviction based solely on fingerprint evidence
linking the defendant to the scene of the burglary. 118 Ariz. 562, 563 (1978).
Like Petersen, Carter argued there was “no evidence to show the length of
time which the print has been on the window.” Id. The court determined
the evidence was sufficient:

       the evidence showed that the fingerprints of defendant were
       not found in a place and under circumstances where they
       could have been reasonably made at a time other than the
       time of the commission of the offense. It is well established in
       our state that a crime may be proven by circumstantial
       evidence alone, and that fingerprints are a means of positive
       identification by which a defendant may be linked with the
       commission of the offense.

Id. (quoting State v. Brady, 2 Ariz. App. 210, 213 (1965)).




                                       7
                            STATE v. PETERSEN
                            Decision of the Court

¶21            In addition, the law governing burglary does not explicitly
require proof that a victim owned an allegedly stolen item. Even if it did,
here MO testified that he owned a gun that had been stolen during the
instant burglary. This is evidence of MO’s ownership. See Gonzales v. City
of Phoenix, 203 Ariz. 152, 156, ¶ 16 (2002) (“In considering whether sufficient
proof exists to support a jury verdict, an appellate court looks to the broad
scope of the trial and does not re-weigh the evidence on review.”). The
evidence is sufficient to support the jury conclusion that Petersen is guilty
of first degree burglary.

II.    Sentencing

¶22           Although Petersen’s sentence was enhanced by the existence
of two historical felonies, and he was sentenced as a category 3 repetitive
offender for the class 2 felony, the court did not sentence him to an
aggravated sentence, but rather a slightly mitigated sentence. This is so
even though the jury found aggravating factors. The mitigated sentence the
court imposed reflects that it considered the factors and agreed with
Petersen that the mitigating circumstances outweighed the aggravating
circumstances.

¶23           Because the evidence is sufficient to support a conviction for
first degree burglary and a mitigated sentence, there is no error, as Petersen
claims, of an excessive sentence.

III.   Prosecutorial misconduct for failing to earlier disclose evidence of
       a prior burglary

¶24           After empanelment of the jury, the State informed Petersen
and the court of a prior burglary at MO’s house which occurred “a couple
months prior” to the instant offense. The State said that in a conversation
with MO regarding how he knew which items were stolen, MO informed
the State that he had just repurchased and replaced the items after the
earlier burglary. Counsel and the court discussed the potential effect, if
any, of making the jurors aware of a prior burglary, including whether to
instruct MO to not mention it or to only permit sanitized information (i.e.
just that unknown people broke in). There was some concern that evidence
of a prior burglary might suggest Petersen may have burglarized the home
before the charged offense. The court “want[ed] to make sure that
[Petersen] has a right to explore [the prior burglary] if he wants to.” The
court directed the State to find out whether there was a police report for the
earlier burglary and stated “if he made an insurance claim, I would imagine
he would have had to have a police report.”



                                      8
                             STATE v. PETERSEN
                             Decision of the Court

¶25            At the recess, counsel and the court reaffirmed that the State
was to provide the defense information regarding when other burglaries
occurred, the investigating agency, the point of entry into the home, what
items were stolen, and if any arrests were made. The next day of trial,
Petersen’s counsel reported the defense received a police report that
morning and stated: “after having the weekend to think about this, I would
just ask that there not be any mention of that prior burglary during this trial.
For the reasons that were already discussed, it’s not relevant and I certainly
think that the implication would be that Mr. Petersen had something to do
with it, so ask that it not be brought up.” MO was instructed to not talk
about the prior burglary during his testimony, but told that if asked how he
knows the items were or were not taken in the earlier burglary, he may state
that he knows because there was a previous burglary, but nothing beyond
that. MO was never asked this question during testimony and the prior
burglary was not mentioned.

¶26          Petersen argues that a lesser degree of burglary would have
been charged if the prosecutor had earlier disclosed that MO’s home had
previously been burglarized and items were stolen. Petersen claims he
should have been charged only with third degree burglary. See supra note
6.

¶27           We disagree. First, even if the prior burglary would have
been disclosed earlier and established the gun had been stolen in the earlier
burglary, it may not have affected charging Petersen, but only whether
there was evidence to support a conviction. In that case, the deadly weapon
element could not have been proven. See generally ¶ 17. However, the
evidence was undisputed that the gun was stolen in this burglary.

¶28           Second, the late disclosure cannot be said to rise to the level
of prosecutorial misconduct because it did not “so infect[] the trial with
unfairness as to make the resulting conviction a denial of due process.”
State v. Hughes, 193 Ariz. 72, 79, ¶ 26 (1998) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974)); see also State v. Benson, 232 Ariz. 452,
463, ¶ 40 (2013) (“We will reverse a conviction for prosecutorial misconduct
only if (1) the prosecutor committed misconduct and (2) a reasonable
likelihood exists that the prosecutor's misconduct could have affected the
verdict.”); State v. Newell, 212 Ariz. 389, 402, ¶ 61 (2006) (“To warrant
reversal, the prosecutorial misconduct must be so pronounced and
persistent that it permeates the entire atmosphere of the trial.”) (internal
quotation marks and citations omitted)).




                                        9
                            STATE v. PETERSEN
                            Decision of the Court

IV.    Court’s denial of Petersen’s motion for insurance claim
       information

¶29           Petersen argues he “had a right to secure evidence critical to
his defense” and that the court committed error by denying his motion to
get insurance information related to any claims MO made. We disagree.
First, the motion Petersen filed regarding insurance claims that the court
denied pertained only to an insurance claim filed in response to the instant
burglary. It did not include or contemplate earlier insurance claim
information because the fact of a prior burglary was not known until after
the court denied Petersen’s motion. Petersen never re-urged his motion for
information related to MO’s insurance claim for the instant burglary, much
less make a motion for insurance claim information for the earlier burglary.
See supra note 2.

¶30           Second, Petersen does not explain how information related to
an insurance claim made for the instant offense was “critical” to his defense.
Even assuming that the insurance claim information from the instant
burglary showed MO did not make a claim for the gun, that fact does not
exculpate Petersen, but rather merely establishes that MO did not make an
insurance claim for the gun. Petersen cannot show he was prejudiced by
the denial of his motion for insurance claim information related to the
instant burglary.

                              CONCLUSION

¶31           We have reviewed the record for fundamental error and have
found none. The proceedings complied with the Arizona Rules of Criminal
Procedure, Petersen and his attorney were present, and Petersen was given
an opportunity to speak at sentencing. The evidence supports the verdict,
and the sentence imposed was within the enhanced sentencing range
applicable to Petersen’s offense. Thus, we affirm Petersen’s conviction and
sentence.

¶32             Upon the filing of this decision, counsel shall inform Petersen
of the status of the appeal and his future appellate options. Defense counsel
has no further obligations unless, upon review, counsel finds an issue




                                      10
                           STATE v. PETERSEN
                           Decision of the Court

appropriate for submission to the Arizona Supreme Court by petition for
review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Petersen 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.




                                  :ama




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