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State v. Ellis

Court of Appeals of Arizona, First Division, Division One

November 19, 2013

STATE OF ARIZONA, Appellee,
v.
LAMAR ROSHAUN ELLIS, Appellant.

Not for Publication See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24

Appeal from the Superior Court in Maricopa County No. CR2011-120554-001 The Honorable Pamela Hearn Svoboda, Judge

Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix By Cory Engle Counsel for Appellant

Lamar Roshaun Ellis Appellant In Propria Persona

Chief Judge Diane M. Johnsen delivered the decision of the Court, in which Presiding Judge Peter B. Swann and Judge Randall M. Howe joined.

MEMORANDUM DECISION

JOHNSEN, Chief Judge

¶1 This appeal was timely filed in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), following Lamar Roshaun Ellis's conviction of one count of kidnapping, a Class 2 felony; three counts of aggravated assault, Class 3 felonies; and misconduct involving weapons, a Class 4 felony. Ellis's counsel has searched the record on appeal and found no arguable question of law that is not frivolous. See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Counsel now asks this court to search the record for fundamental error. Ellis has filed a supplemental brief identifying certain issues, which we address below. After reviewing the entire record, we affirm Ellis's convictions and sentences, but modify the judgment of conviction to omit the requirement that Ellis pay for the cost of DNA testing.

FACTS AND PROCEDURAL HISTORY

¶2 Ellis's home was burglarized, and neighbors told him the burglar was one of his acquaintances.[1] When the acquaintance later showed up at Ellis's home, Ellis and his friend confronted him about the burglary, then beat him with a gun and cut him with a knife while threatening further violence. They then placed the victim in a car, and, at Ellis's direction, the friend drove into the desert, where they threatened the victim again, then left him bruised and bloodied.

¶3 At trial, the victim did not testify, but a friend of Ellis who witnessed the assault identified Ellis as the assailant. A technician testified that DNA matching the victim's was found in blood collected from Ellis's shoes, the floor of his living room and on a handgun and knife found in the trunk of his car.

¶4 The jury convicted Ellis of one count of kidnapping as a dangerous offense, three counts of aggravated assault as dangerous offenses, and one count of misconduct involving weapons. The superior court found that Ellis had two prior felony convictions, one of them a dangerous offense. The court sentenced Ellis to a term of 28 years' imprisonment on the kidnapping charge, a term of 20 years' imprisonment on each of the aggravated assault charges, and a term of 4.5 years' imprisonment on the charge of misconduct involving weapons, all to be served concurrently. Ellis was awarded 421 days of presentence incarceration credit.

¶5 Ellis timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2013), ...


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