State v. Young

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

DAVIERRE JAY YOUNG, Appellant.

No. 1 CA-CR 14-0632
FILED 8-18-2015

Appeal from the Superior Court in Maricopa County
No. CR2012-009158-003
The Honorable Robert E. Miles, Retired Judge

AFFIRMED

COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Joel M. Glynn
Counsel for Appellant
 STATE v. YOUNG
Decision of the Court

MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Jon W. Thompson joined.

J O N E S, Judge:

¶1 Davierre Young appeals his convictions and sentences for one
count each of armed robbery, aggravated assault, and kidnapping. After
searching the entire record, Young’s defense counsel has identified no
arguable question of law that is not frivolous. Therefore, in accordance with
Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297
(1969), defense counsel asks this Court to search the record for fundamental
error. Young was afforded the opportunity to file a supplemental brief in
propria persona, which he elected to do. After reviewing the record, we find
no error. Accordingly, Young’s convictions and sentences are affirmed.

FACTS1 AND PROCEDURAL HISTORY

¶2 Young and two associates were indicted on one count each of
armed robbery, aggravated assault, and kidnapping,2 based on an event

1 We view the facts in the light most favorable to sustaining the jury’s
verdict, with all reasonable inferences resolved against the defendant. State
v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (quoting State v. Valencia, 186
Ariz. 493, 495 (App. 1996)).

2 As relevant here, a person commits armed robbery if “in the course
of taking any property of another from his person or immediate presence
and against his will,” Ariz. Rev. Stat. (A.R.S.) § 13-1902 (2012), “[a] person
or an accomplice: . . . [i]s armed with a deadly weapon or a simulated
deadly weapon; or . . . [u]ses or threatens to use a deadly weapon,” A.R.S.
§ 13-1904(A) (2012). A person commits aggravated assault when using a
deadly weapon to “[i]ntentionally plac[e] another person in reasonable
apprehension of imminent physical injury.” A.R.S. §§ 13-1203(A)(2) (2012),
-1204(A)(2) (2012). And, a person commits kidnapping by “knowingly
restraining another person with the intent to . . . aid in the commission of a
felony.” A.R.S. § 13-1304(A)(3) (2012).

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Decision of the Court

that occurred on January 7, 2012.3 All of the offenses were alleged to be
dangerous offenses involving the use or exhibition of a deadly weapon. See
A.R.S. § 13-105(13).4

¶3 At trial, the State presented the following evidence: Early in
the morning of November 7, 2012, R.P. was walking home from a hookah
lounge near 19th Avenue and Osborn in Phoenix, Arizona when a dark
SUV with a white sticker on the back windshield pulled over nearby. Three
men exited the vehicle. One pointed a black revolver at R.P. while another
tried to punch him in the face. Ultimately, two men held R.P.’s arms and
rifled through his pockets while the third kept the gun pointed between his
eyes. During this time, R.P. was “in fear for [his] life.” The men took R.P.’s
wallet and cell phone from his pockets, got back into the SUV, and drove
northbound on 19th Avenue. Shaken, R.P. returned to the hookah lounge
and called the police. R.P. described the three men, their vehicle, and their
direction of travel. Another witness provided a license plate number.

¶4 Officers located the SUV at a nearby Wal-Mart. After a short
vehicle pursuit, the suspects crashed the SUV into a block wall at an
apartment complex, and a police air unit flew over the scene as three
subjects “took off running” from the vehicle. Young and his associates were
apprehended shortly thereafter. After he was taken into custody, the man
later identified as Young, asked: “So am I going to get booked? Or what’s
going to happen?”

¶5 R.P. identified each of the individuals as involved in the
robbery in separate one-on-one identifications. He described Young’s role
in the events as holding his left arm and rifling through his left side pockets,
which were empty. R.P. also identified the SUV crashed into the block wall
as the vehicle the men were traveling in.

¶6 Surveillance video from the Wal-Mart and a nearby
convenience store showed the three men together both before and after the
robbery. Young is seen wearing a black leather jacket and a brown rosary
around his neck.

3 Young’s associates were tried separately on these charges, as well as
additional counts of attempted armed robbery, kidnapping, aggravated
assault, and burglary.

4 Absent material changes from the relevant date, we cite a statute’s
current version.

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¶7 A black revolver was recovered from the ground near
Young’s associates’ feet when they were arrested. The firing pin had been
removed but was discovered nearby. Together, they were assembled into
a functioning firearm. R.P.’s wallet, driver’s license, social security card,
debit card, and cell phone were recovered from the SUV. The police also
recovered a torn piece of leather jacket from the ground in the direction
Young fled, and a brown rosary was among the personal possessions
removed from Young at the time he was booked.

¶8 At the close of State’s evidence, Young’s counsel moved for
judgment of acquittal under Arizona Rule of Criminal Procedure 20,
arguing insufficient evidence to support findings that: (1) the firearm was
functioning at the time of the events, (2) R.P. was in imminent fear of
physical injury or death, or (3) Young had any criminal intent. The motion
was denied.

¶9 Young testified in his defense. He admitted he was riding in
a dark SUV with his associates on November 7, 2012 and stopped at the
convenience store to buy cigarettes. When the convenience store would not
sell to them because they were underage, an associate spotted R.P. walking
on the sidewalk and suggested they ask him to buy the cigarettes. Young
maintained that he did not plan to rob R.P., did not know his associate had
a firearm, and did not touch R.P. or otherwise participate in the robbery.
Young stated he was “shocked” by the events and only got back into the car
because he needed a ride to his grandmother’s house.

¶10 During cross-examination, the State asked Young: “Now,
never once when you were with police did you say something like, ‘Hey, I
wasn’t involved with this,’ did you?” The trial court sustained Young’s
counsel’s objection that the question impermissibly commented on his prior
invocation of the right to remain silent, but denied the motion for mistrial
on this basis.

¶11 The jury found Young guilty as charged and determined the
offenses were dangerous offenses as defined in A.R.S. § 13-105(13). Young
was sentenced to slightly mitigated prison terms of nine years for the armed
robbery and kidnapping, and six and a half years for the aggravated assault,
with the terms to run concurrently. Young timely appealed, and we have
jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

¶12 Within his supplemental brief, Young argues: (1) the one-on-
one identification by R.P. “was coercive and highly suggestive,” and should

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have been excluded from trial, and (2) the trial court erred in denying his
counsel’s motion for a mistrial. Because Young did not raise these
arguments below, we review only for fundamental error. State v. Henderson,
210 Ariz. 561, 567, ¶ 19 (2005). We find none.

¶13 First, although “[a]n inherently suggestive one-person show-
up identification procedure implicates due process,” it is nonetheless
admissible if it is sufficiently reliable. State v. Rojo-Valenzuela, 716 Ariz.
Adv. Rep. 7, ¶¶ 1, 7 (2015). We need not consider this issue, however,
because during the course of his testimony at trial, Young admitted he was
present when R.P.’s property was taken at gunpoint on November 7, 2012,
admitted he went to the convenience store and Wal-Mart with his
associates, and admitted he fled from the crashed SUV when pursued by
law enforcement. Even if there were not sufficient indicia of reliability and
other substantial evidence corroborating the on-scene identification, its
admission was harmless beyond a reasonable doubt in light of Young’s
admissions under oath that he was present during the crimes. See State v.
White, 16 Ariz. App. 514, 516 (1972) (concluding that any error in giving the
jury instruction regarding flight in a prosecution for escape was harmless
beyond a reasonable doubt where defendant testified and admitted to the
escape) (citing State v. Hixson, 16 Ariz. App. 251, 254 (1972)).

¶14 Second, while comment upon a defendant’s silence may be
error, State v. Davis, 119 Ariz. 529, 533 (1978), even constitutional error is not
reversible if it is harmless beyond a reasonable doubt, Chapman v. California,
386 U.S. 18, 24 (1967). Here, the State asked a single question. The defense
objection was sustained, and the jury was instructed to disregard the
testimony. The State did not further pursue the line of questioning, nor was
there any argument made to the jury attempting to draw any inference from
the testimony. See State v. Peterson, 107 Ariz. 268, 270-71 (1971) (affirming
denial of a motion for mistrial after concluding any error was harmless
beyond a reasonable doubt under similar circumstances); see also State v.
Anderson, 110 Ariz. 238, 240-41 (1973) (noting a single question and answer
regarding a defendant’s failure to tell his story to the police, standing alone
without objection or further discussion, might not rise to the level of
reversible error). Under these circumstances, we are convinced that what
occurred was harmless beyond a reasonable doubt and did not warrant a
mistrial.

¶15 Having reviewed the entire record for reversible error, we
find none. See Leon, 104 Ariz. at 300 (“An exhaustive search of the record
has failed to produce any prejudicial error.”). Reasonable evidence was
presented to support the jury’s verdict that Young was a “hands-on”

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participant in the armed robbery, aggravated assault, and kidnapping of
R.P. Young not only accompanied his associates, but held R.P.’s arms and
actively searched his pockets while an associate held a revolver to R.P.’s
forehead.

¶16 All of the proceedings were conducted in compliance with the
Arizona Rules of Criminal Procedure. So far as the record reveals, Young
was represented by counsel at all stages of the proceedings and was present
at all critical stages. The jury was properly comprised of twelve jurors, and
the record shows no evidence of jury misconduct. See A.R.S. § 21-102(B);
Ariz. R. Crim. P. 18.1(a). At sentencing, Young was given an opportunity
to speak, and the trial court stated on the record the evidence and materials
it considered and the factors it found in imposing sentence. Additionally,
the sentence imposed was within the statutory limits. See A.R.S. § 13-
704(A).

CONCLUSION

¶17 Young’s convictions and sentences are affirmed. After the
filing of this decision, defense counsel’s obligations pertaining to Young’s
representation in this appeal have ended. Defense counsel need do no more
than inform Young of the outcome of this appeal and his future options,
unless, upon review, counsel finds an issue appropriate for submission to
our supreme court by petition for review. State v. Shattuck, 140 Ariz. 582,
584-85 (1984).

¶18 Young has thirty days from the date of this decision to
proceed, if he wishes, with an in propria persona petition for review. See Ariz.
R. Crim. P. 31.19(a). Upon the Court’s own motion, we grant Young thirty
days from the date of this decision to file an in propria persona motion for
reconsideration.

:ama

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