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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
TIMOTHY HECTOR SAMORA, Appellant.
No. 1 CA-CR 19-0641
FILED 10-13-2020
Appeal from the Superior Court in Maricopa County
No. CR2018-141541-001
The Honorable AnnieLaurie Van Wie, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Scott Boncoskey
Counsel for Appellant
STATE v. SAMORA
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Chief Judge Peter B. Swann
joined.
W I N T H R O P, Judge:
¶1 Timothy Hector Samora (“Appellant”) was convicted of one
count of burglary in the second degree, a class three non-dangerous
repetitive felony, in violation of Arizona Revised Statutes (“A.R.S.”) section
13-1507. This appeal is filed in accordance with Anders v. California, 386 U.S.
738 (1967) and State v. Leon, 104 Ariz. 297 (1969). Appellant’s counsel has
advised this court that he has found no arguable question of law that is not
frivolous and asks this court to review the record for fundamental error.
See State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999) (stating that this court
reviews the entire record for reversible error). This court allowed Appellant
the opportunity to file a supplemental brief in propria persona, but he has not
done so.
¶2 We have appellate jurisdiction pursuant to the Arizona
Constitution, Article 6, Section 9, and A.R.S. §§ 12-120.21(A)(1), 13-4031,
and 13-4033(A)(1). Finding no reversible error, we affirm.
FACTS1 AND PROCEDURAL HISTORY
¶3 On August 23, 2018, a witness called 911 to report suspicious
activity in an alley behind her home. She informed the 911 dispatcher that
she witnessed an unknown individual jump over a fence in the alley and
into her neighbor’s backyard. The witness also reported there was a second
individual, later identified as Appellant, who drove up in a truck and
remained with the vehicle, such that his face was visible to the witness.
After a short time, the witness saw the individual who jumped the fence
pass a large television over the fence to Appellant, who loaded the
1 We view the facts in the light most favorable to sustaining the verdict
and resolve all reasonable inferences against Appellant. See State v. Fontes,
195 Ariz. 229, 230, ¶ 2 (App. 1998).
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STATE v. SAMORA
Decision of the Court
television into the bed of the truck. The pair then got in the truck and left,
with Appellant driving the vehicle.
¶4 After receiving notification of the 911 call, a Phoenix police
officer responded to the general area and located a truck matching the
witness’ description a few miles from where the incident had occurred, and
conducted a traffic stop of the vehicle. During the stop, the officer observed
a television in the bed of the truck and confirmed the identities of the two
individuals as Appellant and Jeffrey Allen Falkner.
¶5 Shortly thereafter, police officers responded to the witness’
home and asked that she accompany them to identify the potential
suspects. The witness positively identified the apprehended vehicle as the
one she had observed in the alley and identified the driver as Appellant and
the passenger, Falkner, as the individual who jumped the fence.
¶6 Additional police officers responded to the address where the
incident occurred and notified the fiancée of the homeowner that there had
been a break-in at the property. The homeowner and his fiancée confirmed
they did not know Appellant and that Appellant did not have permission
to be on the property or to access the television. They also confirmed that,
apart from the television, there were no other possessions in the house at
the time of the incident and that the only noticeable damage was to a
window in one of the bedrooms.
¶7 Appellant was arrested and later indicted for one count of
burglary in the second degree. Appellant pled not guilty at his arraignment
in September 2018. Between March 2019 and September 2019, Appellant’s
trial was continued several times due to the reappointment of counsel and
scheduling conflicts, to which Appellant waived time. After a three-day
trial in September 2019, a jury found Appellant guilty of burglary in the
second degree.
¶8 During the sentencing proceedings on November 13, 2019,
Appellant knowingly and voluntarily admitted to four prior felony
convictions alleged by the state. The court found Appellant’s prior felony
convictions to be an aggravating factor and Appellant’s remorse and
admission to prior felony convictions to be mitigating factors. Appellant
was sentenced to ten years imprisonment and received 397 days of
presentence credit.
¶9 Appellant timely appealed, and this court has jurisdiction
pursuant to A.R.S. § 13-4033.
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STATE v. SAMORA
Decision of the Court
ANALYSIS
¶10 We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300. The record reflects the proceedings
were conducted in compliance with Appellant’s constitutional and
statutory rights and conformed to the Arizona Rules of Criminal Procedure.
Appellant was represented by counsel at all stages of the proceedings and
was present at all critical stages.
¶11 Appellant exercised his right to a trial by jury, which jury was
properly composed of eight members and two alternates. See A.R.S. § 21-
102(B). The record does not demonstrate the empanelment of any biased
jurors. The court properly instructed the jury on the elements of the charge,
the state’s burden of proof, the presumption of innocence, and the need for
a unanimous verdict. There was no evidence of jury tampering, juror
misconduct, or deadlock.
¶12 The state presented sufficient evidence as to each element of
the offense to allow the jury to convict Appellant. The jury returned a
unanimous verdict, finding Appellant guilty, which was confirmed by juror
polling.
¶13 The superior court identified the evidence and factors
considered in reaching a sentencing determination and allowed Appellant
to speak at the sentencing hearing. Appellant’s sentence was within the
legally permissible range.2 See A.R.S. § 13-703(J).
¶14 After the filing of this decision, Appellant’s counsel shall
inform Appellant of the status of his appeal and of his future options.
Counsel has no further obligations related to this appeal unless, upon
review, counsel finds an issue appropriate for submission to the Arizona
Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582,
584-85 (1984). Appellant shall have thirty days from the date of this
decision to proceed, if he desires, with a pro per motion for reconsideration
or petition for review.
2 Our review indicates Appellant should have only received 396 days
of presentence incarceration credit and not 397 days; however, this error is
in Appellant’s favor and thus not subject to fundamental error review. See
State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018) (explaining fundamental
error is error that prejudices the defendant and goes to the foundation of
the case, takes away a right essential to a defense, or is so egregious that the
defendant cannot possibly have received a fair trial).
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STATE v. SAMORA
Decision of the Court
CONCLUSION
¶15 We affirm Appellant’s conviction and the resulting sentence.
AMY M. WOOD • Clerk of the Court
FILED: AA
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