Court of Appeals of Arizona, First Division, Department C
Not for Publication – Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County Cause No. CR2011-135767-001 The Honorable Dawn M. Bergin, Judge
Thomas C. Horne, Arizona Attorney General Joseph T. Mariarz, Acting Chief Counsel Criminal Appeals Section Attorneys for Appellee.
James J. Haas, Maricopa County Public Defender Charles R. Krull, Deputy Public Defender Attorneys for Appellant.
DONN KESSLER, Judge.
¶1 A jury convicted Appellant Richard Garcia of Count 1, disorderly conduct, pursuant to Arizona Revised Statutes ("A.R.S.") section 13-2904(A) (2010). This is a class 6 dangerous felony and a domestic violence offense, pursuant to A.R.S. §§ 13-2904(B), -105(13) (Supp. 2012), -3601(A) (Supp. 2012). The jury also convicted Garcia of Count 2, misconduct involving weapons, A.R.S. § 13-3102(A)(4) (Supp. 2012), a class 4 felony, A.R.S. § 13-3102(L) . Garcia was sentenced to concurrent presumptive terms of 2.25 and 10 years' incarceration, respectively. Counsel for Garcia filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999) . Finding no arguable issues to raise, counsel requests that this Court search the record for fundamental error. Garcia was given the opportunity to file a pro per supplemental brief, but did not do so. For the reasons that follow, we affirm Garcia's convictions and sentences.
FACTUAL AND PROCEDURAL HISTORY
¶2 Garcia and the victim, RR, lived together, had been in a relationship for several years, and had two children together. In June 2011, the couple had an argument on the telephone about their shared car. RR demanded that Garcia bring the car to her so that she could use it, and warned Garcia that if he did not do so, she would report it as stolen. Garcia responded that he was going to come over to "fuck up the house."
¶3 Garcia arrived home and they continued arguing. RR locked Garcia outside of the house. As the argument progressed, RR called 911 asking for help because Garcia was trying to force his way back inside. RR told the emergency operator that Garcia had a Mossberg 12-gauge shotgun. At trial, RR testified that it sounded like Garcia was trying to kick the door down from the outside. He also threw and broke a flower pot against the door. Garcia drove away while RR was on the 911 call, before law enforcement arrived.
¶4 Officer L responded. Upon arrival, he noted the broken flower pot and the scuff marks on the door. He did not see Garcia or the car. RR appeared upset when she answered the door with her son, D. RR told Officer L that she saw Garcia loading the shotgun into their car the night before. She also told the officer about the telephone argument precipitating Garcia's arrival at the house.
¶5 In July 2011, Officer C arrested Garcia and obtained a buccal DNA swab sample from him pursuant to a search warrant. Meanwhile, Officer L and the Glendale Police Department's fugitive squad executed search warrants for the couple's house and car. They found a Mossburg 12-gauge shotgun in the master bedroom closet. Because records of long gun purchases are purged after 30 days, it was impossible to determine to whom the shotgun was registered, however, the gun had not been reported stolen. RR told Officer L that Garcia must have put the shotgun in the closet, because she asked him to remove it from the car whenever she was driving.
¶6 At trial, RR testified that she did not remember the details of what she told police. Contrary to her various statements to police, RR testified that she never saw Garcia with a gun and that she lied to police when she told them that she saw Garcia with a shotgun.
¶7 A DNA analyst tested the gun's DNA evidence against Garcia's DNA buccal swab. The analyst testified that Garcia's DNA was a "major contributor" to the sample collected from the shotgun, making it essentially a statistical impossibility that the gun DNA samples came from anyone other than Garcia. According to the analyst, Garcia's DNA most likely was on the gun because he handled it directly.
¶8 The jury convicted Garcia on both counts. The court held a trial on Garcia's prior felony convictions and found that he had two historical prior felony convictions. Garcia received concurrent and enhanced presumptive sentences of 2.25 years' and 10 years' incarceration, respectively. Garcia timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona ...