Opinion
1 CA-CR 12-0444
05-30-2013
STATE OF ARIZONA, Appellee, v. JEFFREY SCOTT DENIS, Appellant.
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Acting Chief Counsel Criminal Appeals Section Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Christopher V. Johns, Deputy Public Defender Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2011-103044-001
The Honorable William L. Brotherton, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Joseph T. Maziarz, Acting Chief Counsel
Criminal Appeals Section
Attorneys for Appellee
Phoenix James J. Haas, Maricopa County Public Defender
By Christopher V. Johns, Deputy Public Defender
Attorneys for Appellant
Phoenix KESSLER, Judge ¶1 Jeffrey Scott Denis ("Denis") was tried and convicted of shoplifting with an artifice, instrument, container, device or other article, a class 4 felony. Counsel for Denis filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Finding no arguable issues to raise, counsel requests that this Court search the record for fundamental error. Denis was afforded the opportunity to, but did not submit, a supplemental brief in propria persona. For the reasons that follow, we affirm Denis's conviction and sentence.
FACTUAL AND PROCEDURAL HISTORY
¶2 On January 18, 2011, two Sears Holding loss prevention employees observed Denis and his wife on surveillance screens displaying "alert" behaviors that a shoplift was in progress. Taking a different route than his wife, Denis began matching up merchandise to different-sized boxes. One employee testified that such activity usually indicates a type of shoplifting called "box stuffing," whereby the shoplifter purchases merchandise according to the value listed on the box, rather than the value of the merchandise concealed within. ¶3 Denis took a child booster seat box from its display shelf and used a sharp instrument to cut open the bottom. He replaced the booster seat on the shelf and put the now-empty box back into the cart. Denis moved throughout the store, adding merchandise to his cart. He transferred a Dyson vacuum cleaner, electronic device, electric razor, blue jeans, a pack of white undershirts, and some T-shirts into the box. While moving about the store, Denis obscured the fact that the box was open by closing the flaps and setting a water container on top. All in all, Denis concealed merchandise worth a sum of about $396, before taxes, into one car booster seat box worth about $13.99. ¶4 Meanwhile, the employees alerted the Peoria Police Department that shoplifting was in progress with two suspects. The police were also given Denis's vehicle description. When Officer B. arrived, he went to the loss prevention office. The store employees pointed out Denis on the surveillance screen and warned Officer B. that Denis appeared to have a sharp instrument on his person. On the screen, Officer B. observed Denis take a roll of tape from a tape display shelf and use it to re-seal the child booster seat box before heading to the checkout area. ¶5 When Officer H. arrived, she located Denis's car outside. It was parked in the space closest to Sears' front doors, and it had been left alone with the windows down and the key in the ignition. Officer H. waited by the car until Denis's wife started walking out of the store. When Denis's wife saw Officer H., she promptly turned around to go back inside toward the checkout area. Officer H. hurried after Denis's wife, stopped her just inside the doors, and began leading her back out of the store. ¶6 When Denis's wife made eye contact and motioned to Denis before Officer H. led her from the store, Denis abandoned his shopping cart. Officer B. intervened at this time, stopping Denis and placing him in handcuffs. Officer B. removed Denis to the loss prevention office and read Denis his Miranda rights, which Denis subsequently waived. Officer B. proceeded to interview Denis, who confessed to his actions and intent of shoplifting that day. ¶7 In August 2011, the jury found Denis guilty of shoplifting with an artifice, instrument, container, device, or other article. At sentencing, Denis admitted to two prior felony convictions in exchange for the prosecution dropping a sentence enhancement charge that he had violated probation. The court ordered a mitigated sentence of 7.5 years with 293 days of presentence incarceration credit. Because Denis had violated a previous probation term, the court waived the community supervision requirement and reinstated supervised probation for 2 years. Denis was ordered to pay a total of $40 in probation surcharges. ¶8 Denis filed a delayed appeal, pursuant to Rule 32.1(f) of the Arizona Rules of Criminal Procedure. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2003), 13-4031 (2010), -4033(A)(1) (2010).
Miranda v. Arizona, 384 U.S. 436 (1966).
We cite the current version of the applicable statute when no revisions material to this decision have since occurred.
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STANDARD OF REVIEW
¶9 In an Anders appeal, this Court must review the entire record for fundamental error. 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, 115 P.3d 601, 607 (2005) (quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984)). To obtain a reversal, the defendant must also demonstrate that the error caused prejudice. Id. at ¶ 20. On review, "[w]e construe the evidence in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant." State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998).
DISCUSSION
¶10 After careful review of the record, we find no meritorious grounds for reversal of Denis's conviction or modification of the sentence imposed. The record reflects that Denis was present and represented at all critical stages of trial, the proceedings were held consistent with the Arizona Rules of Criminal Procedure, Denis was given the opportunity to speak at sentencing, and the sentence imposed was within the range for Denis's offense. However, we review the evidence to confirm that it was sufficient to support the conviction.
SUFFICIENCY OF THE EVIDENCE
¶11 In reviewing the sufficiency of evidence at trial, "[r]eversible 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, 928 P.2d 610, 624 (1996) (quoting State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976)). ¶12 There is evidence in the record to support the jury's conviction of Denis for the crime of shoplifting with an artifice, instrument, container, device or other article ("facilitated shoplifting"). A person commits facilitated shoplifting if that person "uses an artifice, instrument, container, device or other article with the intent to facilitate shoplifting." A.R.S. § 13-1805(I) (2010). The underlying crime of shoplifting is committed if,
while in an establishment in which merchandise is displayed for sale, the person knowingly obtains such goods of another with the intent to deprive that person of such goods by: (1) Removing any of the goods from the immediate display or from any other place within the establishment without paying the purchase price; or . . . (3) Paying less than the purchase price ofA.R.S. § 13-1805(A)(1), (3)-(5). Facilitated shoplifting is a class 4 felony. A.R.S. § 13-1805(I). ¶13 The testimony of the two Sears loss prevention employees and Officer B. showed that the merchandise was on display for sale at Sears, and that Denis knowingly removed the merchandise from its immediate display with the intent to permanently deprive Sears of such goods by concealing the goods in a box reflecting a product of relatively low value, and using this artifice to pay less than the purchase price of the goods. Furthermore, Denis admitted that he had no intent to pay for any of the merchandise that he had concealed in the box. The evidence supports the finding that Denis committed shoplifting. ¶14 With respect to Denis committing facilitated shoplifting with an "artifice, instrument, container, device or other article," A.R.S. § 13-1805(I), the State introduced both testimony and video evidence demonstrating that Denis emptied a box of merchandise and used it to conceal more expensive merchandise. Although the statute does not define "container," we look to the dictionary definitions of the word under the direction of A.R.S. § 1-213 (2002), which provides that "[w]ords and phrases shall be construed according to the common and approved use of the language." See Rigel Corp. v. State, 225 Ariz. 65, 69, ¶ 19, 234 P.3d 633, 637 (App. 2010) (using common usage and dictionary definitions to define a term at issue). Thus, a container for the purposes of this statute is defined to be "[a] receptacle for holding or carrying material." Webster's II New Riverside University Dictionary 304 (1994). The emptied box meets this definition.
the goods by some trick or artifice . . . or (4) Transferring the goods from one container to another; or (5) Concealment.
CONCLUSION
¶15 For the foregoing reasons, we affirm Denis's conviction and sentence. Upon the filing of this decision, counsel shall inform Denis of the status of the appeal and his future appellate options. Defense counsel has no further obligations, unless, upon review, counsel finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Denis shall have thirty days from the date of this decision to proceed, if he so desires, with an in propria persona motion for reconsideration or petition for review.
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DONN KESSLER, Judge
CONCURRING: _______________
JOHN C. GEMMILL, Presiding Judge
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JON W. THOMPSON, Judge