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State v. Austin

Court of Appeals of Arizona, Second Division, Department B

September 16, 2013

THE STATE OF ARIZONA, Appellee,
v.
CARLOS D. AUSTIN, Appellant

Not for Publication Rule 111, Rules of the Supreme Court

APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY Cause No. CR201000401 Honorable James L. Conlogue, Judge

Zohlmann Law Offices By Robert J. Zohlmann Tombstone Attorney for Appellant.

MEMORANDUM DECISION

PHILIP G. ESPINOSA, Judge

¶1 Carlos Austin was convicted after a jury trial of two counts of sexual conduct with a minor twelve years of age or younger, both dangerous crimes against children, and sentenced to consecutive terms of life imprisonment, with no possibility of release for thirty-five years. Counsel has filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999), stating he has reviewed the record but found "no tenable issue to raise on appeal" and asking this court "to review the record for potential error." Austin has not filed a supplemental brief.

¶2 Viewed in the light most favorable to upholding the jury's verdicts, see State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008), the evidence established that Austin had sexual intercourse with the twelve-year-old victim numerous times, including on or about April 16, 2010, and on or about April 21, 2010. This evidence is sufficient to support the jury's verdicts, and Austin's sentences are within the prescribed statutory range and were lawfully imposed. A.R.S. §§ 13-705(A), 13-1405(A), (B).

¶3 Pursuant to our obligation under Anders, we have reviewed the record in its entirety and considered all potential issues. Such issues include the trial court's denial of Austin's request for a jury questionnaire before voir dire and its overruling of Austin's objection to purported "vouching" for the victim's credibility by the victim's mother, to which counsel has drawn our attention but correctly characterized as frivolous. See State v. Fuller, 143 Ariz. 571, 575, 694 P.2d 1185, 1189 (1985) (Anders requires court to search record for fundamental error); Leon, 104 Ariz. at 299, 451 P.2d 881 (counsel may refer in Anders brief "'to anything in the record that might arguably support the appeal'"), quoting Anders, 386 U.S. at 744. We have found no error. Thus, Austin's convictions and sentences are affirmed.

CONCURRING: VIRGINIA C. KELLY, Presiding Judge, PETER J. ECKERSTROM, Judge.


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