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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JAMES ALLEN DAY, Appellant.
No. 1 CA-CR 14-0618
FILED 10-22-2015
Appeal from the Superior Court in Maricopa County
No. CR 2013-003278-001
The Honorable David B. Gass, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
DeBrigida Law Offices, Glendale
By Ronald M. DeBrigida, Jr.
Counsel for Appellant
STATE v. DAY
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Patricia A. Orozco and Judge Maurice Portley joined.
D O W N I E, Judge:
¶1 James Allen Day appeals his convictions for sexual assault,
possession or use of dangerous drugs, and possession of drug
paraphernalia. Pursuant to Anders v. California, 386 U.S. 738 (1967), and
State v. Leon, 104 Ariz. 297 (1969), his counsel has searched the record, found
no arguable question of law, and asked us to review the record for
reversible error. See State v. Richardson, 175 Ariz. 336, 339 (App. 1993). Day
was given the opportunity to file a supplemental brief in propria persona, but
he has not done so. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY1
¶2 On her way home from dinner, A.P. stopped at a local bar.
Before her second drink, things began to get “cloudy.” Although she
remembered little, A.P. stayed until closing, talked with other patrons
about attending a “get-together” at Day’s house, and got on Day’s
motorcycle with him.
¶3 A surveillance camera recorded Day and A.P. entering a
convenience store together around 1:45 a.m. and purchasing beer. Though
she showed signs of intoxication, the store clerk testified A.P. seemed
relaxed and friendly with Day. Nonetheless, after Day exited, she asked the
clerk for a piece of paper and wrote a phone number with a message “along
the lines of, help, or 9-1-1.” When Day came back inside to get her, A.P. left
with him.
¶4 The clerk called the number given to him and spoke with
A.P.’s husband, who then called the police. Officers contacted A.P., who
said she was “okay.” A.P.’s husband also called her cell phone around 3:30
a.m. Although she “seemed very inebriated” and did not know where she
1 “We view the evidence in the light most favorable to sustaining the
verdicts and resolve all inferences against appellant.” State v. Nihiser, 191
Ariz. 199, 201 (App. 1997).
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STATE v. DAY
Decision of the Court
was, A.P. said she was fine. Around 4:50 a.m., A.P. called 9-1-1, saying she
was hiding from Hell’s Angels members who would kill her if they found
her. Police pinged A.P.’s cell phone to determine her location and found
her hiding in some bushes, lying in the fetal position, wearing only a shirt.
¶5 During a police interview, A.P. said she woke up to a man
having sex with her, and she identified Day from a photo lineup. She led
police to Day’s house and described its interior, including the general
layout and furniture. Police obtained a warrant and found A.P.’s sandals
and shorts in Day’s house. They also found drugs and drug paraphernalia.
¶6 The State charged Day with: (1) kidnapping; (2) sexual
assault; (3) misconduct involving weapons; (4) possession or use of
dangerous drugs; (5) possession of drug paraphernalia; and (6) assisting a
criminal street gang. The superior court severed count three, and Day pled
guilty to that count.2 The jury returned guilty verdicts for counts two, four,
and five, but found Day not guilty of counts one and six. The jury also
found the State had proven that the sexual assault caused physical,
emotional, or financial harm to A.P. as an aggravating circumstance.
¶7 The superior court sentenced Day to 15 years for count two,
10 years for count three, 4.5 years for count four, and 1.75 years for count
five — each sentence to run concurrently. The court awarded him 663 days
of presentence incarceration credit on each of the sentences. Day 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), 13-4031, and -4033(A)(1).
DISCUSSION
¶8 We have read and considered the brief submitted by Day’s
counsel and have reviewed the entire record. See Leon, 104 Ariz. at 300. We
find no reversible error. All of the proceedings were conducted in
compliance with the Arizona Rules of Criminal Procedure, and the
sentences imposed were within the statutory range. Day was present for
all critical phases of the proceedings and was represented by counsel. The
jury was properly impaneled and given instructions consistent with the
2 We do not consider count three on appeal. Convictions pursuant to
a plea agreement are generally not appealable. See A.R.S. § 13-4033(B); see
also State v. Moreno, 134 Ariz. 199, 200 (App. 1982) (plea agreement waives
all prior non-jurisdictional defenses, errors, and defects).
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STATE v. DAY
Decision of the Court
offenses charged. The record reflects no irregularity in the deliberation
process.
¶9 Each conviction is supported by substantial evidence. See
State v. Tison, 129 Ariz. 546, 552 (1981) (sufficiency of the evidence hinges
on whether substantial evidence supports the verdict). “Substantial
evidence is proof that reasonable persons could accept as sufficient to
support a conclusion of a defendant’s guilt beyond a reasonable doubt.”
State v. Spears, 184 Ariz. 277, 290 (1996). Such evidence may be
circumstantial or direct. State v. Henry, 205 Ariz. 229, 232, ¶ 11 (App. 2003).
I. Sexual Assault
¶10 The State was required to prove that Day intentionally or
knowingly had sex with A.P. without her consent. See A.R.S. § 13-1406(A).
The State introduced evidence establishing that A.P. was incapable of
consent by reason of impairment. See A.R.S. § 13-1401(7)(b). In addition to
high levels of alcohol, lab results showed A.P. had multiple drugs in her
system that she testified she did not take, including temazepam — a sleep
aid and common date-rape drug that can cause a hypnotic-like state and
amnesia. A.P. consistently stated that she woke up to Day having sex with
her. The jury could have reasonably concluded from the evidence presented
that Day had non-consensual sex with A.P.
II. Possession of a Dangerous Drug and Drug Paraphernalia
¶11 The State was required to prove that Day knowingly
possessed dangerous drugs, see A.R.S. § 13-3407(A)(1), and that he
possessed drug paraphernalia with an intent to use it, see A.R.S.
§ 13-3415(A). Day stipulated that a plastic bag found in his house contained
a usable quantity of methamphetamine, a dangerous drug. See A.R.S.
§ 13-3401(6)(b)(xv). Officers also found a “pipe commonly used for
smoking methamphetamine,” a cap to a hypodermic syringe, and a “spoon
typically used for drugs.” When police questioned him, Day did not deny
having methamphetamine in his house, but stated he would not have left
such things out if he knew officers were going to search his house. A jury
could reasonably conclude that Day possessed a dangerous drug and drug
paraphernalia.
CONCLUSION
¶12 We affirm Day’s convictions and sentences. His counsel’s
obligations of representation in this appeal have ended. Counsel need do
nothing more than inform Day of the status of the appeal and his future
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STATE v. DAY
Decision of the Court
options, unless counsel’s review reveals an issue appropriate for
submission to the Arizona Supreme Court by petition for review. See State
v. Shattuck, 140 Ariz. 582, 584–85 (1984). On the court’s own motion, and if
he so desires, Day may proceed with an in propria persona motion for
reconsideration or petition for review within thirty days of this decision.
:ama
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