                          NOTICE: NOT FOR PUBLICATION.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.

                     DANIEL JOSEPH KNOX, Appellant.

                             No. 1 CA-CR 13-0442
                              FILED 09-04-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-006300-002
                The Honorable John R. Ditsworth, 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. KNOX
                            Decision of the Court



                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Donn Kessler and Judge Patricia K. Norris joined.


P O R T L E Y, Judge:

¶1             This is an appeal under Anders v. California, 386 U.S. 738 (1967)
and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Defendant
Daniel Joseph Knox has advised us that he has searched the entire record,
has been unable to discover any arguable questions of law, and has filed a
brief requesting us to conduct an Anders review of the record. Defendant
was given the opportunity and has filed a supplemental brief.

                                   FACTS1

¶2            A neighbor saw three people whom she did not recognize
approach the backyard of the home across the street on January 7, 2012. She
called the police and subsequently heard banging noises from behind the
house.

¶3           Phoenix Police Officer Lamont Cox responded, went to the
house, detained one suspect, and, by radio, provided the description of the
other two individuals. Officer John Meyer responded and apprehended
Knox. The neighbor subsequently identified Knox as one of the three
people she saw earlier.

¶4            Knox was charged with burglary in the third degree, tried,
and found guilty by a jury of the class four felony. His sentence was
suspended, and he was placed on probation for three years and ordered to
pay restitution of $1000 to the victim at the rate of $50 per month beginning
July 1, 2013.




1 We view the facts “in the light most favorable to sustaining the verdict,
and resolve all reasonable inferences against the [D]efendant.” State v.
Rienhardt, 190 Ariz. 579, 588-89, 951 P.2d 454, 463-64 (1997).



                                       2
                             STATE v. KNOX
                            Decision of the Court

¶5            We have jurisdiction over this appeal pursuant to Article 6,
Section 9, of the Arizona Constitution, and Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).2

                               DISCUSSION

       I.     Rule 20/Sufficiency of the Evidence

¶6           Knox argues that the superior court erred by denying his
Arizona Rule of Criminal Procedure (“Rule”) 20 motion for judgment of
acquittal. We disagree.

¶7            We review the denial of a Rule 20 motion de novo and view
the facts in the light most favorable to sustaining the judgment. State v.
West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011). We will affirm the
ruling if supported by substantial evidence. State v. Pena, 209 Ariz. 503, 505,
¶ 7, 104 P.3d 873, 875 (App. 2005). Substantial evidence is “proof that
reasonable persons could accept as adequate and sufficient to support a
conclusion of defendant’s guilt beyond a reasonable doubt.” Id. (citation
omitted) (internal quotation marks omitted).

¶8            A person commits burglary in the third degree by “[e]ntering
or remaining unlawfully in or on a nonresidential structure or in a fenced
commercial or residential yard with the intent to commit any theft or any
felony therein.” A.R.S. § 13-1506. An act is unlawful if the person’s “intent
for so entering or remaining is not licensed, authorized or otherwise
privileged.” A.R.S. § 13-1501(2).

¶9             Here, the neighbor testified that she observed Knox and the
others approach the victim’s backyard. The victim’s adult son testified that
his mother, the owner of the house, was living with him because she was ill
and he was taking care of her house. He stated that he had no knowledge
that anyone had permission to enter the backyard which was completely
fenced, and he had not given Knox or others permission to be in the
backyard. He also testified that after receiving a call from the neighbor
about the intrusion, he went to the house and found that that his mother’s
window was bent and pulled out and the window crank was broken. Based
on the trial testimony, there was substantial evidence to allow the jury to
determine whether Knox had unlawfully, and without permission, entered
into a fenced residential yard with the intent to commit a theft or other


2We cite the current version of the applicable statutes absent any changes
material to this decision.


                                      3
                              STATE v. KNOX
                             Decision of the Court

felony; the requisite elements of burglary. See id.; see also A.R.S. § 13-1506;
State v. Rodriguez, 114 Ariz. 331, 333, 560 P.2d 1238, 1240 (1977) (“[S]pecific
intent to do an act may be inferred from the circumstances of the doing of
the act itself.”). Accordingly, the court did not err by denying the Rule 20
motion.

¶10           Knox also challenges the sufficiency of the evidence on the
grounds that (1) he was not identified or could not be placed at the
residence, and (2) the homeowner did not testify. Knox, however, was
identified by the neighbor who saw him go into her neighbor’s backyard,
described him to the police and later identified him. There was, as a result,
substantial evidence for the jury to conclude beyond a reasonable doubt
that he was involved in the burglary.

¶11          Moreover, although the victim did not testify, there is no legal
requirement for her to testify. The victim’s adult son was responsible for
the property while his mother was ill and living with him, and he testified
about his observations at the house both before and after the intrusion by
Knox. His testimony, with the other testimony, was sufficient to allow the
jury to determine whether the State had proved its case beyond a
reasonable doubt.

¶12           Knox also claims that the court erred by allowing the victim’s
adult son to testify to hearsay information. Specifically, Knox argues that
the son should not have been allowed to testify that he did not have any
knowledge of his mother giving anyone permission to be in the backyard.

¶13           The son’s testimony was not, however, hearsay. He did not
testify about what his mother said outside of the courtroom, which would
be classic hearsay. Arizona Rules of Evidence 801(c). Instead, he testified
about his knowledge — that he did not know that his mother had given
anyone permission to be in the backyard. Consequently, the court did not
abuse its discretion by allowing the son to testify about his knowledge.

       II.    Other Errors

¶14             Knox also raises a number of arguments that were not raised
at trial. Specifically, he contends that: (1) the State failed to find exculpatory
evidence; (2) the State failed to provide a Brady list; and (3) the State
engaged in prosecutorial misconduct. When a defendant fails to object to
an issue at trial, our review of that issue is limited to fundamental
prejudicial error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601,
607 (2005). Fundamental error is “error going to the foundation of the case,



                                        4
                             STATE v. KNOX
                            Decision of the Court

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.” Id. “To prevail under this standard of review, a defendant must
establish both that fundamental error exists and that the error in his case
caused him prejudice.” Id. at ¶ 20.

              A.      Exculpatory Evidence

¶15            Knox argues that the State failed to acquire exculpatory
evidence in support of his defense. Specifically, he contends he was
prejudiced because the police failed to investigate the crime scene and
failed to take a photograph of a gap in the victim’s backyard fence. He also
contends, as a result, that the court erred by failing to give a jury instruction
regarding exculpatory evidence.

¶16            The State does not have a duty “to seek out and gain
possession of potentially exculpatory evidence,” State v. Tyler, 149 Ariz. 312,
317, 718 P.2d 214, 219 (App. 1986), but needs to disclose any exculpatory
evidence if it exists. Ariz. R. Crim. P. 15.1(b)(8). However, the State must
preserve material evidence that it is aware of and is reasonably within its
grasp. State v. Perez, 141 Ariz. 459, 463, 687 P.2d 1214, 1218 (1984). If the
State “negligently fail[s] to preserve potentially exculpatory evidence, an
instruction pursuant to State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964),
permits the jury to infer that the evidence would have been exculpatory.”
State v. Fulminante, 193 Ariz. 485, ¶ 62, 503, 975 P.2d 75, 93 (1999).

¶17             A Willits instruction is proper if a defendant can demonstrate
“(1) that the state failed to preserve material evidence that was accessible
and might tend to exonerate him, and (2) resulting prejudice.” Id. (quoting
State v. Leslie, 147 Ariz. 38, 47, 708 P.2d 719, 728 (1985)). A defendant may
not receive a Willits instruction “merely because a more exhaustive
investigation could have been made.” State v. Murray, 184 Ariz. 9, 33, 906
P.2d 542, 566 (1995). After all, “in almost every case prosecuted, the claim
can be made that the investigation could have been better.” State v.
Willcoxson, 156 Ariz. 343, 346, 751 P.2d 1385, 1388 (App. 1987) (“Whether [a
Willits] instruction is necessary depends on a judgment as to how central
the issue is to the case and how much better or more important the ‘missing’
evidence might have been than the evidence that was introduced.”).

¶18           Here, the police officers conducted an investigation of the
scene by interviewing the homeowner’s son about the condition of the yard
and house. The son testified that the residential yard was fenced, and Knox
was allowed to cross-examine him.



                                       5
                             STATE v. KNOX
                            Decision of the Court

¶19            Although Knox complains that the police did not take
pictures of the fence, the police were not required to take pictures of the
fence. Knox was free to cross-examine the officers and the homeowner’s
son about the hole in the fence. See Willcoxson, 156 Ariz. at 346, 751 P.2d at
1388 (“We do not believe that a failure to pursue every lead or gather every
conceivable bit of physical evidence will require a Willits instruction.”).
But, even if the police had taken a photograph of the hole in the fence,
neither the hole nor the photograph would have given Knox permission to
be in the homeowner’s fenced back yard. Moreover, there was no evidence
that Knox had permission to be in the fenced back yard. Accordingly, the
court was not required to give an instruction about exculpatory evidence or
a Willits instruction.

              B.     Brady List

¶20            Knox next claims he was entitled to review the personnel files
of the testifying officer to determine whether there was any information
that could impeach their credibility. State v. Acinelli, 191 Ariz. 66, 71, 952
P.2d 304, 309 (App. 1997). We disagree.

¶21             Knox failed to request the personnel files of the testifying
officers. He never argued that he had information that could be in the files
that could purportedly impeach the credibility of the officers. See id.
(adopting the proposition that mere speculation that Brady material may
exist is insufficient to require disclosure). Moreover, given the nature of the
case — the police respond to a 9-1-1 call; the neighbor points out the
intruders; the police find Knox and he is later identified by the neighbor —
we find no error.

              C.     Prosecutorial Misconduct

¶22            Knox also contends that the prosecutor committed
misconduct when he misidentified an item during closing argument.
Specifically, Knox argues the prosecutor incorrectly named an item a “bed
mattress” when it was actually a “box spring.” We find no misconduct.

¶23            Prosecutorial misconduct requires that a defendant
demonstrate that the prosecutor’s conduct was so egregious that it infected
the trial with unfairness and resulted in a conviction. State v. Roque, 213
Ariz. 193, 228, 141 P.3d 368, 403 (2006). Here, the homeowner’s son testified
that one of the items in the backyard was a metal bed frame. During closing
argument, the State referred to the metal bed frame, but never referred to a
“bed mattress.” But, even if the State had referred to a “bed mattress”
during closing argument, we would not find any error. The jury heard the


                                      6
                             STATE v. KNOX
                            Decision of the Court

testimony and the court properly instructed them that the arguments were
not evidence; and we presume the jury follows the instructions. State v.
Reyes, 232 Ariz. 468, 471, ¶ 7, 307 P.3d 35, 38 (App. 2013) (quoting State v.
Newell, 212 Ariz. 389, 403, ¶ 68, 132 P.3d 833, 847 (2006)). Therefore, we find
no error.

       III.   Ineffective Assistance of Counsel

¶24           Finally, Knox contends that because of staffing issues at the
private law firm retained to represent him, he received ineffective
assistance of counsel. Knox can only raise the ineffective assistance of
counsel claim in a petition for post-conviction relief pursuant to Arizona
Rule of Criminal Procedure 32. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d
525, 527 (2002) (“[I]neffective assistance of counsel claims are to be brought
in Rule 32 proceedings. . . . [C]laims improvidently raised in a direct appeal,
henceforth, will not be addressed by appellate courts regardless of merit.”).
Consequently, we will not review the issue.

¶25           We have addressed the issues in the supplemental brief and
have also reviewed and searched the entire record for reversible error. We
find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. All of the proceedings
were conducted in compliance with the Arizona Rules of Criminal
Procedure. Knox was represented by counsel at all stages of the
proceedings, and the suspended sentence was authorized by law.

¶26            After this decision is filed, counsel’s obligation to represent
Knox in this appeal has ended. Counsel must only inform Knox of the
status of the appeal and his future options, unless counsel identifies 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).
Knox may, if he desires, file a motion for reconsideration or petition for
review pursuant to the Arizona Rules of Criminal Procedure.




                                      7
                   STATE v. KNOX
                  Decision of the Court

                     CONCLUSION

¶27   Accordingly, we affirm Knox’s conviction and sentence.




                       :gsh




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