Opinion
No. 2 CA-CR 2016-0249
03-30-2018
THE STATE OF ARIZONA, Appellee, v. EVAN PAUL TEMPLIN, Appellant.
COUNSEL Emily Danies, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20153491001
The Honorable Teresa Godoy, Judge Pro Tempore
AFFIRMED
COUNSEL Emily Danies, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Judge Espinosa concurred. EPPICH, Judge:
¶1 After a jury trial in May 2016, Evan Templin was convicted of first-degree burglary. The trial court sentenced him to a presumptive, 9.25-year sentence.
Templin also pled guilty to weapons misconduct, possession of a dangerous drug, and possession of drug paraphernalia, and was sentenced to concurrent 4.5- and 1.75-year prison terms to be served concurrently with his sentence for the burglary offense.
¶2 Counsel has filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530 (App. 1999), asserting she has reviewed the record but found no "arguable question of law" to raise on appeal. Consistent with Clark, 196 Ariz. 530, ¶ 32, she has provided "a detailed factual and procedural history of the case with citations to the record" and asks this court to search the record for fundamental error. Templin has filed a pro se supplemental brief arguing the evidence was insufficient to support his conviction; the prosecutor vouched for testifying police officers, who were improperly permitted to testify about the way the state handled the evidence; and, the trial court should have instructed the jury, sua sponte, about the mishandling of the evidence and prosecutorial vouching.
¶3 Viewed in the light most favorable to sustaining the jury's verdict, see State v. Tamplin, 195 Ariz. 246, ¶ 2 (App. 1999), the evidence was sufficient to support the verdict here. See A.R.S. § 13-1508. Early in the morning on August 15, 2015, during an encounter with police officers, Templin "took off running" into a residential area. Shortly thereafter, officers asked the victim for permission to search his yard and garage for Templin, who was the only person they had seen running in the area. The victim subsequently discovered Templin inside his residence wearing his clothing and holding his handgun. After Templin left the victim's residence, the victim reported missing several items, including two handguns, a rifle scope, ammunition, a rifle, prescription medication, and his checkbook. Additionally, the trial court correctly sentenced Templin as a category-two repetitive offender, and his sentence is within the statutory range and was properly imposed. See A.R.S. § 13-703(B), (I).
Section 13-1508(A), A.R.S., provides that a person commits first-degree burglary "if such person . . . violates the provisions of either § 13-1506 or 13-1507 and knowingly possesses . . . a deadly weapon . . . in the course of committing any theft or any felony."
¶4 In his supplemental brief, Templin challenges the sufficiency of the evidence to convict him, specifically noting the victim was unable to identify him in a photographic lineup and the coffee mug used by the intruder in the victim's home "eventually" yielded "inconclusive" DNA results. We review de novo the sufficiency of the evidence. State v. Snider, 233 Ariz. 243, ¶ 4 (App. 2013). In doing so, we view the evidence in the light most favorable to sustaining the jury's verdict and resolve all inferences against the defendant. State v. Felix, 237 Ariz. 280, ¶ 30 (App. 2015). A trial court "must enter a judgment of acquittal . . . if there is no substantial evidence to warrant a conviction." Ariz. R. Crim. P. 20(a). Substantial evidence is that which jurors "could accept as sufficient to support a guilty verdict beyond a reasonable doubt." State v. Davolt, 207 Ariz. 191, ¶ 87 (2004). We do not distinguish between direct and circumstantial evidence. State v. Borquez, 232 Ariz. 484, ¶ 11 (App. 2013).
Deoxyribonucleic acid.
Although a detective testified at trial that the state had not yet received the DNA results on the coffee mug and spoon used by the intruder, he did not testify those results were inconclusive, contrary to Templin's claim about the results. Nor does Templin direct us to any place in the record supporting his claim.
¶5 Although several officers were able to positively identify Templin as the individual they had chased, the victim was unable to recognize him in a photographic lineup, as Templin correctly notes. However, based on the officers' positive identifications of Templin, they located him a few days after the incident, at which time Templin ran from the officers and dropped a bag he had been carrying. The bag contained the victim's checkbook, a box of collector's coins the victim had kept in his home, the victim's gun, and a gun barrel. Templin was also carrying a wallet containing a credit card with the victim's name on it. Cf. State v. Jones, 125 Ariz. 417, 420 (1980) (possession of stolen property two months after theft sufficiently "recent" for statutory inference of guilt); State v. Ramos, 235 Ariz. 230, ¶ 20 (App. 2014) (inference of guilt triggered by possession of stolen property twenty-four hours after theft).
Templin maintains he "came a[]cross" the bag in an alley. --------
¶6 In addition, because both the state and defense counsel pointed out the victim's failure to identify Templin's photograph and the absence of DNA evidence, these issues were squarely presented to the jury. The jury as the trier of fact determined what evidence to accept and reject, see State v. Ruiz, 236 Ariz. 317, ¶ 16 (App. 2014), and we will not reweigh the evidence on appeal, State v. Lee, 189 Ariz. 590, 603 (1997). Moreover, although some of the evidence in this case was circumstantial, that "does not make it insubstantial." State v. Jensen, 106 Ariz. 421, 423 (1970); see also State v. Pena, 209 Ariz. 503, ¶ 7 (App. 2005), disagreed with on other grounds by State v. Paredes-Solano, 223 Ariz. 284, n.6 (App. 2009). We thus conclude the state presented substantial evidence supporting Templin's conviction for burglary. See Snider, 233 Ariz. 243, ¶ 4.
¶7 Templin also argues the prosecutor vouched for police officers, apparently referring to the testimony of various officers identifying him as the individual they had chased on the day of the incident. We initially note that, other than referring to the prosecutor's closing argument, Templin has not directed us to the specific statements he believes constituted such vouching. Templin is correct that a prosecutor is not permitted to vouch for a witness by "plac[ing] the prestige of the government behind its witness" or "suggest[ing] that information not presented to the jury supports the witness's testimony." State v. Vincent, 159 Ariz. 418, 423 (1989). However, that did not occur here. The prosecutor's references to the officers' testimony in closing argument was more akin to a summary of the evidence presented rather than vouching.
¶8 Templin also suggests the trial court committed fundamental error, apparently by failing to instruct the jury to disregard the state's comments on the absence of the DNA test results and on prosecutorial vouching. To the extent this claim, raised for the first time on appeal, is subject to review, it is for prejudicial, fundamental error only. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20 (2005). However, we cannot discern any prejudice from these suggestions of error. In light of all of the previously summarized evidence supporting Templin's conviction, we conclude the jury instructions he asserts should have been given would not have changed the jury's verdict. See id. ¶ 27 (fundamental error only prejudicial if reasonable jury could have reached different result but for error); see also State v. Marchesano, 162 Ariz. 308, 316 (App. 1989) ("It is a rare case where the omission of an instruction without objection constitutes fundamental error."), disapproved on other grounds by State v. Phillips, 202 Ariz. 427, n.4 (2002). Templin has cited no authority for the proposition the court was required to give such instructions sua sponte, nor are we aware of any based on the record before us.
¶9 Pursuant to our obligation under Anders, we have searched the record for fundamental, reversible error and found none. See State v. Fuller, 143 Ariz. 571, 575 (1985) (Anders requires court to search record for fundamental error). Accordingly, we affirm Templin's conviction and sentence.