Court of Appeals of Arizona, First Division, Department B
Not for Publication – Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County Cause No. 2011-007992-001 The Honorable Carolyn K. Passamonte, Judge Pro Tempore
Thomas C. Horne, Arizona Attorney General Phoenix By Joseph T. Mariarz, Section Chief Counsel Criminal Appeals Section Attorneys for Appellee
James J. Haas, Maricopa County Public Defender Phoenix By Joel M. Glynn, Deputy Public Defender Attorneys for Appellant
DONN KESSLER, Judge
¶1 Appellant Michael David Chambers ("Chambers") was convicted of failing to register a change of address as a sex offender, a class 4 felony with one historical prior felony conviction. See Ariz. Rev. Stat. ("A.R.S.") §§ 13-3822(A) (Supp. 2012), -3821 (Supp. 2012), -3824 (Supp. 2012). Counsel for Chambers 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. Chambers submitted a supplemental brief in propia persona, raising the following issues: (1) the court erred in denying a judgment of acquittal despite a lack of sufficient evidence to support the charge; (2) it was error to use evidence of two different acts to prove a single offense; (3) the court improperly instructed the jury about the applicable sex offender registration laws and did not answer a juror's question; and (4) it was error to deny his post-trial motion for new trial based on jury misconduct. For the reasons that follow, we affirm Chambers' conviction and sentence.
FACTUAL AND PROCEDURAL HISTORY
¶2 In May 2011, Officer C encountered Chambers at East Lake Park, and Chambers showed him an I.D. card listing a South 17th Street address. Chambers told Officer C that although he received his mail there, he was not residing there as he was currently homeless, and spent a lot of time (including nights) at the park.
¶3 In July 2011, Officer G was investigating a crime at the McKinley men's shelter when he came into contact with Chambers. He ran Chambers' identification information through the police system and realized that Chambers was a registered sex offender. Chambers initially told Officer G that he had been living at the shelter for the past two weeks, then that it had actually been a month, and then that he had been at the shelter on and off for a year. He last remembered registering his address the prior year. TD, the shelter manager, informed Officer G that Chambers had been living there consistently for at least the past month, and before then he was there intermittently for a year.
¶4 In August 2011, Detective W conducted a follow-up investigation regarding Chabmers' living situation. She spoke with TD and visited Chambers' nephew's South 17th Street home, the address that Chambers most recently registered in October 2010. The police issued an arrest warrant for Chambers for failing to register his address as a sex offender.
¶5 The jury convicted Chambers. The trial court found proof of one historical prior felony conviction and sentenced Chambers as a category 2 repetitive offender. See A.R.S. §§ 13-703(B)(2), (I) (Supp. 2012). Chambers received the presumptive 4.5 years' incarceration sentence. A.R.S. § 13-703(I). He timely appealed, and we have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2010), and -4033(A)(1) (2010).
¶6 In an Anders appeal, this Court must review the entire record for fundamental error. State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993) . 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, we view the facts in the light most favorable ...