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State v. Dillon

Court of Appeals of Arizona, First Division, Department E

October 17, 2013

STATE OF ARIZONA, Appellee,
v.
BRYAN EUGENE DILLON, Appellant.

Not for Publication -Rule 111, Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County Cause No. CR2012-123890-002 The Honorable Margaret R. Mahoney, Judge

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

James J. Haas, Maricopa Public Defender Phoenix By Thomas K. Baird, Deputy Public Defender Attorneys for Appellant

MEMORANDUM DECISION

MARGARET H. DOWNIE, Judge

¶1 Bryan Eugene Dillon timely appeals his convictions for aggravated criminal damage, burglary in the third degree, and possession of burglary tools in violation of Arizona Revised Statutes ("A.R.S.") sections 13-1505, -1506, and -1604. Pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), defense counsel has searched the record, found no arguable question of law, and asked that we review the record for reversible error. See State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Defendant did not file a supplemental brief. On appeal, we view the evidence in the light most favorable to sustaining the convictions. State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981), cert. denied, 459 U.S. 882 (1982).

FACTS AND PROCEDURAL HISTORY

¶2 Around 10:30 a.m., security officer R.H. patrolled an underground parking garage in his marked security vehicle. R.H. heard a "clinking noise" and saw a man standing at the rear of a yellow car with its hatchback open. R.H. saw that copper piping was missing from the wall behind the car. R.H. heard the man say, "Oh, shit, let's get out of here" before he shut the hatchback and got into the passenger seat. Within seconds, R.H. saw a second man get into the driver's seat. R.H. followed the vehicle out of the garage and called 9-1-1, giving a description of the vehicle, its occupants, and its direction of travel.

¶3 Officer Keller was patrolling in the vicinity when she heard that a bright yellow vehicle with two male passengers had been involved in a copper theft. She saw a similar vehicle and stopped it. Dillon was the driver. Inside the vehicle, officers discovered four lengths of cut copper piping and a large cutting tool between the driver and passenger seats, as well as a pair of gloves. When he was brought to the traffic stop location, R.H. immediately identified the vehicle and its passenger, though he could not identify the driver. Officers confiscated the pipe, gloves, and cutting tool.

¶4 Dillon told an officer his name, date of birth, and address, and explained "he didn't work, that's why he was doing this." Dillon also said the vehicle belonged to his girlfriend. At the garage, an officer matched the physical attributes of the confiscated pipe with the pipe remaining in the garage; its length matched the space where the missing pipe should have been. A building manager identified the seized pipe as belonging to the complex.

¶5 Dillon and his passenger were charged as accomplices[1] and indicted on aggravated criminal damage ("count 1"), burglary in the third degree ("count 2"), and possession of burglary tools ("count 3"). A jury trial ensued.

¶6 At the conclusion of the State's case, Dillon moved for a judgment of acquittal pursuant to Rule 20, Arizona Rules of Criminal Procedure ("Rule"). The trial court denied the motion. The jury convicted Dillon of all charges. The State proved four aggravators for sentencing purposes: presence of an accomplice, the offenses were committed in expectation of pecuniary gain, the defendants left the scene of the crime, and Dillon was on release status when the offenses occurred. The State also proved that Dillon had six prior felony convictions.

¶7 Dillon was sentenced to concurrent aggravated terms of imprisonment of six years for count 1, ten years for count 2, and five years for count 3, and received 312 ...


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