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State v. Brascom

Court of Appeals of Arizona, First Division, Department D

June 20, 2013

STATE OF ARIZONA, Appellee,
v.
OTIS BERRY BRASCOM, Appellant.

Not for Publication – Rule 111, Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County Cause Nos. CR2010-160471-001 and CR2010-117584-001 The Honorable Cynthia J. Bailey, Judge.

Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Acting Chief Counsel Criminal Appeals Section Attorneys for Appellee.

James J. Haas, Maricopa County Public Defender Jeffrey L. Force, Deputy Public Defender Attorneys for Appellant.

MEMORANDUM DECISION

DONN KESSLER, Judge.

¶1 Otis Berry Brascom ("Brascom") was tried and convicted of Count 1: burglary in the third degree, a class 4 felony, and Count 2: possession of burglary tools, a class 6 felony. Counsel for Brascom 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. Brascom has submitted a supplemental brief in propria persona, raising two issues. For the reasons that follow, we affirm Brascom's convictions and sentences.

FACTUAL AND PROCEDURAL HISTORY

¶2 "M.P." observed Brascom attempting to steal copper wire from Cavco, a business that sells manufactured homes. M.P.'s business is located adjacent to Cavco and separated only by a chain link fence. When M.P. first saw Brascom on Cavco property, Cavco's business hours had ended for the day and there were no Cavco employees on the premises. Brascom was crouched down using bolt cutters to cut copper wires inside a circuit breaker box located on the external frame of a manufactured home.

¶3 M.P. yelled at Brascom and, receiving no response, began throwing small rocks at him. At this point, Brascom stood up and M.P. was able to get a good look at Brascom's face. Brascom began walking quickly toward the Cavco property exit. While M.P.'s co-worker called Cavco supervisor "L.G., " M.P. jumped into his car and drove until he located Brascom walking away from the Cavco exit. M.P. passed Brascom and found Officer "G." working nearby. M.P. explained what he had observed, described Brascom, and informed Officer G. of Brascom's current location.

¶4 Officer G. drove to intercept Brascom while M.P. waited in his car. Officer G. testified that Brascom matched M.P.'s description, and that Brascom was the only pedestrian on the sidewalk at that time. Officer G. pulled over, handcuffed Brascom, and called for back-up. Officers "R." and "W." arrived within minutes. Officer G. left Brascom with the officers and drove back to bring M.P. to the scene of the arrest. Upon arrival, M.P. immediately identified Brascom as the same person he had observed cutting wires on the Cavco property.

¶5 Officer R. then read Brascom his Miranda rights, [1] which Brascom said that he understood. During the subsequent interview, Brascom admitted to being on Cavco property and confessed that he had been attempting to steal copper wiring for food and money. Brascom further admitted to owning the bolt cutters that M.P. had seen, and volunteered to take the officers to them. At Brascom's direction, the police found and impounded a duffel bag filled with tools underneath the Cavco manufactured home. M.P. testified that the bolt cutters found in the duffel bag were the same color as the bolt cutters he had seen Brascom using earlier that day. Brascom did not have any copper wires on his person when the police found him and, so far as the police know, Brascom did not take any wires from the Cavco property that day. However, the officers took pictures of the circuit box that showed where Brascom had been able to cut several copper wires.

¶6 The jury found Brascom guilty of burglary in the third degree and possession of burglary tools. At sentencing, the court dealt with the present case (CR2010-160471-001) and the previous case for which Brascom had violated probation (CR2010-117584-001). For the present case, the court imposed a mitigated sentence of six years for burglary in the third degree and a mitigated sentence of 2.25 years for possession of burglary tools, with 518 days of presentence incarceration credit for both counts. As to the previous case, the court revoked Brascom's probation, designated the offense a class six felony, and sentenced him to a presumptive term of one year, with 365 days of presentence incarceration credit. The court ordered all of the sentences to run concurrently. For both cases, the court ordered a term of community supervision. Brascom was ordered to pay a $2208 fine and a $375 probation service fee, both of which were reduced to criminal restitution orders.

¶7 Brascom filed a timely appeal. 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 ...


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