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State v. Vineyard

Court of Appeals of Arizona, First Division, Department D

August 20, 2013

STATE OF ARIZONA, Appellee,
v.
DONALD VINEYARD, Appellant.

Not for Publication – Rule 111, Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County Cause No. CR2011-008284-001 The Honorable Dawn M. Bergin, Judge

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

Marty Lieberman, Maricopa County Legal Defender Phoenix By Cynthia D. Beck, Deputy Legal Defender Attorneys for Appellant

MEMORANDUM DECISION

PATRICIA A. OROZCO, Judge

¶1 Donald Vineyard (Defendant) appeals his convictions and sentences for burglary in the third degree, a class four felony, and possession of burglary tools, a class six felony. Defendant's counsel 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), advising this court that after a search of the entire appellate record, she found no arguable question of law that was not frivolous. See State v. Clark, 196 Ariz. 530, 537-38, ¶¶ 30-33, 2 P.3d 89, 96-97 (App. 1999). Defendant was given the opportunity to file a supplemental brief in propria persona, but he did not do so.

¶2 Our obligation in this appeal is to review "the entire record for reversible error." Id. at 537, 30, 2 P.3d at 96. Finding no reversible error, we affirm Defendant's convictions and sentences.

FACTS AND PROCEDURAL BACKGROUND

¶3 At approximately 2:30 a.m. on July 16, 2011, Gilbert Police Officer J. Barnett (Officer Barnett) was driving home after the end of his shift and noticed that a home in his Gilbert neighborhood (the Property) had its garage door open. Officer Barnett could see that the passenger side doors on both cars in the Property's driveway were slightly ajar. Officer Barnett then noticed Defendant sitting on the curb in front of a vacant house, approximately 100 feet east of the Property.

¶4 Officer Barnett testified that, as he approached Defendant, Defendant removed black latex gloves from his hands. Defendant testified that he was not wearing gloves when Officer Barnett contacted him and claimed that he had been carrying the gloves in his pocket.

¶5 Defendant was breathing heavily and sweating profusely, and his hands were trembling. Officer Barnett identified himself as a police officer and asked Defendant what he was doing out on the street in the middle of the night. Defendant avoided making eye contact and was unresponsive.

¶6 Officer Barnett conducted a pat-down search for weapons and removed a loaded .38 caliber revolver and a large pocket knife from Defendant. In response to further questioning, Defendant told Officer Barnett that he had just finished a bike ride. When Officer Barnett pointed out that Defendant did not have a bike with him, Defendant claimed he had returned his bike to his home and had been walking around to cool down. Defendant then explained that he wore the black latex gloves while riding his bike, in order to keep his hands from becoming sweaty and cold. Officer Barnett pointed out that Defendant's explanation seemed strange because latex gloves tend to make one's hands sweat.

¶7 Once backup arrived, Officer Barnett woke the owners of the Property, T.P. and S.P. (collectively, the Victims). The Victims told Officer Barnett that the Property's garage door had been closed before they went to bed. The Victims inspected the cars and determined that a garage door opener, a car cell phone charger and a pair of binoculars were missing from the cars. Officer Barnett looked for fingerprints on Victim's cars but did not find any, although the dust had been visibly disturbed. Defendant did not have permission to take anything from the Victims' cars.

¶8 Officer Barnett informed Defendant that there had been a burglary and specifically mentioned the missing garage door opener. However, Defendant denied any knowledge of, or involvement in, a car burglary. Soon thereafter, Officer Barnett heard a thump as a man (Pishotta) fell out from underneath the subframe of a Jeep that was parked across the street. Defendant put his head down and had an exasperated look on his face. The officers searched Pishotta and found "shave keys" and other burglary tools.[1] Defendant ...


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