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State v. Neese

Court of Appeals of Arizona, First Division

January 7, 2016

STATE OF ARIZONA, Appellee,
v.
ROBERT JAMES NEESE, Appellant

Appeal from the Superior Court in Maricopa County. No. CR2005-007461-001. The Honorable Pamela Hearn Svoboda, Judge.

Arizona Attorney General's Office, Phoenix, By Michael O'Toole, Counsel for Appellee.

The Hopkins Law Office, PC, Tucson, By Cedric Martin Hopkins, Counsel for Appellant.

Judge Patricia A. Orozco delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Maurice Portley joined.

OPINION

Page 562

Patricia A. Orozco, Judge:

[¶1] Robert James Neese appeals from his convictions and resulting sentences for seven counts of burglary in the second degree, one count of burglary in the first degree, and seven counts of theft. Neese argues the trial court erred in denying his motion to dismiss based on the running of the statute of limitations. The State contends that the use of a DNA profile to commence a prosecution of an unnamed defendant tolled the statute of limitations. For the following reasons, we affirm Neese's convictions and sentences. Additionally, we amend a typographical error in the sentencing minute entry.

FACTS AND PROCEDURAL HISTORY

[¶2] Beginning in 1999, Scottsdale police investigated a number of residential burglaries and related thefts. Although unable to identify a possible suspect, police obtained DNA evidence from the crime scenes, and the evidence was forensically tested. DNA analysts subsequently found that the multiple samples of DNA shared the same genetic markers and a unique DNA profile was created (DNA Profile) from that evidence. A federal databank of DNA profiles did not produce a match for an individual whose genetic markers matched those of the DNA Profile.

[¶3] On March 15, 2005, an indictment (Indictment) was filed charging " John Doe, I" with seven counts of burglary in the second degree, class 3 felonies; three counts of theft, class 5 felonies; one count of burglary in the first degree, a class 3 felony; three counts of theft, class 3 felonies; and one count of theft, a class 2 felony. The Indictment identified John Doe I as an " Unknown Male with Matching Deoxyribonucleic Acid . . . Profile at Genetic Locations" followed by a string of the genetic markers found at thirteen locations that collectively characterize the DNA Profile. The alleged offenses occurred between 1999 and 2004.

[¶4] In May, 2011, a DNA sample was obtained from Neese that matched the DNA Profile. An amended indictment (Amended Indictment) was filed substituting the John Doe I designation and DNA Profile identification with Neese's name as the defendant. The court issued a second warrant based on the Amended Indictment that identified Neese by his full name, date of birth, and other physical characteristics. Neese was arrested and entered a not guilty plea at his arraignment.

[¶5] Neese subsequently moved to dismiss the twelve counts relating to offenses occurring before May 2004, arguing that the applicable seven-year statute of limitations had expired before the State amended the Indictment naming him as the defendant.[1] Neese

Page 563

argued that the DNA Profile in the Indictment did " not serve to identify someone," and, because a " John Doe" could not be convicted, the Indictment did not toll the statute of limitations.

[¶6] The court denied the motion, and Neese unsuccessfully sought special action relief. A jury subsequently found Neese guilty as charged, and he was sentenced to prison for 22.75 years. Neese appealed, and we have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. § § 12-120.21.A.1, 13-4031 and -4033.A.1 (West 2015).[2]

DISCUSSION

I. Motion to Dismiss: Statute of ...


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