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Not for Publication – Rule 111, Rules of the Arizona Supreme Court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. CR2011-137642-001 The Honorable Robert E. Miles, Judge
Thomas C. Horne, Attorney General Phoenix by Joseph T. Maziarz, Section Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee
James J. Haas, Maricopa County Public Defender Phoenix by Cory Engle, Deputy Public Defender Attorneys for Appellant
SAMUEL A. THUMMA, 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 Romeo Scolli has advised the court that, after searching the entire record, counsel has found no arguable question of law and asks this court to conduct an Anders review of the record. Scolli was given the opportunity to file a supplemental brief pro se, but made no such filing. Finding no reversible error, Scolli's conviction and resulting sentence are affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 While on routine duty, Arizona Department of Public Safety Officer McNulty saw a motorcycle in a motel parking lot that had several inconsistencies, indicating it had been stolen. The motorcycle was spray painted black, had an invalid license plate and a modified vehicle identification number (VIN). The ignition lock had been bypassed and the engine was hotwired. The motorcycle had both a radar detector and a keyed security device. After researching the motorcycle's correct VIN, Officer McNulty determined it was stolen.
¶3 Officer McNulty then spoke with the front desk clerk at the motel and viewed motel video surveillance recordings, which were later shown at trial. The video showed the motorcycle driver enter the motel and reserved a room. The driver was described as a white male with full-sleeve and neck tattoos, wearing a white helmet and a white t-shirt with a red diamond logo. The front desk clerk testified that he recognized the driver as Scolli, that he signed the hotel form as Romero Scolli and he knew his first name was Romeo.
¶4 Officer McNulty impounded the motorcycle, returned to the motel and saw Scolli and three others enter Scolli's motel room. Officer McNulty and two other uniformed officers knocked on Scolli's motel room door. When a woman answered, the officers "ordered all occupants to exit the room for officer safety purposes." When Scolli exited the room, Officer McNulty handcuffed and arrested him.
¶5 The officers searched the motel room and Scolli for protective purposes. During the room search, Officer McNulty noticed in plain view a white helmet matching the helmet from the surveillance video. During a search of Scolli, Officer McNulty found a key in Scolli's pocket. Officer McNulty then read Scolli his rights under Miranda v. Arizona, 384 U.S. 436 (1966) and asked about the key; Scolli stated the key would work any lock. Scolli's statement was admitted at trial without objection.
¶6 Scolli was charged with one count of Theft of Means of Transportation, a class 3 felony. At trial, a lock expert testified that the lock on the motorcycle had a possible 6, 500 key combinations and the key recovered from Scolli fit the lock. A forensic expert testified he matched two fingerprints recovered from the radar detector to Scolli. Scolli's ex-wife testified the license plate on the motorcycle was hers and she had seen the license plate in her garage. At the close of the State's case-in-chief, Scolli's counsel moved for a judgment of acquittal based on a lack of substantial evidence, which was denied.
¶7 Although present for the first day of trial, Scolli failed to appear for the second day of trial without notifying anyone. The superior court found Scolli had voluntarily absented himself from the proceedings and issued a bench warrant. Scolli was not present for the remainder of the trial. Witness identifications of Scolli were then made from memory and from a photograph of Scolli that was admitted into evidence.
¶8 After a two-day trial, and after being instructed on the law and hearing closing arguments, the jury found Scolli guilty as charged. Scolli was later apprehended and held in custody pending sentencing. At sentencing, based on the evidence presented, the superior court found Scolli had three prior historical felony convictions. The ...