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State v. Smith

Court of Appeals of Arizona, First Division, Department E

August 15, 2013

STATE OF ARIZONA, Appellee,
v.
TOM DEAN SMITH, Appellant.

Not for Publication – Rule 111, Rules of the Arizona Supreme Court

Appeal from the Superior Court in Navajo County Cause No. S0900CR201100301 The Honorable Robert B. Van Wyck, Judge Pro Tempore

Thomas C. Horne, Attorney General Phoenix by Joseph T. Maziarz, Assistant Attorney General, Criminal Appeals/Capital Litigation Section Attorneys for Appellee.

Roser Law Office PLLC St. Johns by Samuel J. Roser Attorneys for Appellant.

Tom Dean Smith, Appellant Florence.

MEMORANDUM DECISION

MAURICE PORTLEY, Judge.

¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Defendant Tom Dean Smith has advised us that after searching the entire record, he has been unable to discover any arguable questions of law and has filed a brief requesting us to conduct an Anders review of the record. Defendant has filed a supplemental brief.

FACTS[1]

¶2 Defendant returned home to the trailer he shared with his wife, the victim, [2]on April 24, 2011. Upon entering the room they shared, he began pulling her hair, punching her in the face, and demanding oral sex. While threatening her, he pinned her arms down with his knees, and forced his penis into her mouth. After his discharge, Defendant left the room and the victim called 9-1-1.

¶3 Defendant was located and arrested the next day. He was subsequently indicted for kidnapping/domestic violence, a class two felony, aggravated assault/domestic violence, a class four felony, and sexual assault/domestic violence, a class two felony.

¶4 The matter proceeded to trial. In addition to hearing from the victim and the police, the jury heard a recording of a threatening message Defendant left on the victim's cell phone just prior to the assault. Defendant was found guilty as charged. He was subsequently sentenced to prison for 6.25 years for the sexual assault and five years for kidnapping and aggravated assault, all concurrent sentences, and given 367 days of presentence incarceration credit.

DISCUSSION

¶5 Defendant presents four arguments for our review. First, he argues that the court committed error by failing to provide him with all necessary documents. Specifically, he contends that the court failed to provide him with the portions of the transcript that had not been requested by counsel, namely, the jury selection, the reading of charges, the sentencing hearing, the opening statements and closing arguments, which prevented him from launching an effective appeal. He, however, had the requisite minute entries, and none demonstrate any legal issues that need to be reviewed on appeal. As a result, the argument does not present an issue that would lead to a new trial.

¶6 Next, Defendant argues that the court inappropriately instructed the jury about reasonable doubt. Specifically, he contends that the court erred by using the term "reasonably convinced" instead of ...


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