State v. Diamond

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

AUSTIN NASHAT DIAMOND, Appellant.

No. 1 CA-CR 17-0670
FILED 5-1-2018

Appeal from the Superior Court in Mohave County
No. S8015CR201500910
The Honorable Richard D. Lambert, Judge

AFFIRMED

COUNSEL

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

Janelle A. McEachern Attorney at Law, Chandler
By Janelle A. McEachern
Counsel for Appellant
 STATE v. DIAMOND
Decision of the Court

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge David D. Weinzweig joined.

C R U Z, Judge:

¶1 This appeal is filed in accordance with Anders v. California, 386
U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Counsel for Austin
Nashat Diamond has advised this Court that counsel found no arguable
questions of law and asks us to search the record for fundamental error.
Diamond was convicted of theft, a Class 3 felony, and trafficking in stolen
property in the first degree, a Class 2 felony. Diamond was given an
opportunity to file a supplemental brief in propria persona, but he has not
done so. After reviewing the record, we affirm Diamond’s convictions and
sentences.

FACTUAL AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to sustaining the
convictions and sentences and resolve all reasonable inferences against
Diamond. See State v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).

¶3 In 2013, the two victims employed Diamond in their business
in Fort Mohave and allowed him to stay in their home for short periods of
time because he did not have a place to stay. By December 2013, Diamond
had stopped staying at the house, and one of the victims noticed their two
Omega watches were missing. There were no signs of a break-in. The other
victim called the police and gave them the serial number of one of the
missing watches. A few months later, she provided the other watch’s serial
number and notified the police that the victims had discovered several
other items were missing from their home.

¶4 Because Diamond had previously mentioned to the victims
that he went to pawn shops, the victims told the police to check the local
pawn shops for Diamond’s name. The next day, the police told the victims
they had found two watches with the correct serial numbers by entering

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 STATE v. DIAMOND
Decision of the Court

Diamond’s name into the Leads Online system.1 The police were only able
to recover one of the watches from a pawn shop in Mohave County. They
were unable to recover the second watch.

¶5 The State indicted Diamond for theft, a Class 3 felony, and
trafficking in stolen property in the first degree, a Class 2 felony, in August
2015. It alleged Diamond committed the offenses while on felony probation
and the aggravating factors of substantial value of the property taken,
Diamond committed the offense in expectation of receipt of something of
pecuniary value, the victims suffered emotional or financial harm, and
Diamond was convicted of a felony offense within ten years prior to the
commission of the offense.

¶6 After trial, a jury found Diamond guilty of both counts. It also
found Diamond committed the offenses while on probation for a conviction
of a felony offense and in the expectation of the receipt of anything of
pecuniary value. The court found Diamond was convicted of a felony
offense within ten years prior to the commission of the offense. The
superior court sentenced Diamond to 9.25 years’ imprisonment for
trafficking in stolen property and a concurrent sentence of 6.5 years’
imprisonment for theft. It also ordered Diamond to complete a term of one
year and one month of community service and credited Diamond with 218
days served prior to sentencing. Finally, it required Diamond to pay several
fees2 and $15,885.80 in restitution to the victims.

¶7 Diamond timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and
13-4033.

DISCUSSION

¶8 We review Diamond’s convictions and sentences for
fundamental error. See State v. Flores, 227 Ariz. 509, 512, ¶ 12 (App. 2011).
Counsel for Diamond has advised this Court that after a diligent search of
the entire record, counsel has found no arguable question of law. We have
read and considered counsel’s brief and fully reviewed the record for

1 The Leads Online system is a resource for pawn shops. The shops
enter items into the system, and law enforcement may look up items by
serial number to discover who had pawned or sold the items and when.

2 $20 probation assessment; $13 assessment fee pursuant to A.R.S.
§ 12-116.04; $20 time payment fee pursuant to A.R.S. § 12-116.

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Decision of the Court

reversible error, see Leon, 104 Ariz. at 300, and find none. All of the
proceedings were conducted in compliance with the Arizona Rules of
Criminal Procedure. So far as the record reveals, counsel represented
Diamond at all stages of the proceedings, and the sentences imposed were
within the statutory guidelines. We decline to order briefing and affirm
Diamond’s convictions and sentences.

¶9 Upon the filing of this decision, defense counsel shall inform
Diamond of the status of the appeal and of his future options. Counsel has
no further obligations 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). Diamond 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.

CONCLUSION

¶10 For the foregoing reasons, we affirm Diamond’s convictions
and sentences.

AMY M. WOOD • Clerk of the Court
FILED: AA

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