State v. Dulin

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

PATRICK DULIN, Appellant.

No. 1 CA-CR 18-0044
FILED 11-29-2018

Appeal from the Superior Court in Maricopa County
No. CR2015-143961-001
The Honorable Colleen L. French, Judge Pro Tempore

AFFIRMED

COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Paul J. Prato
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Jon W. Thompson joined.

J O N E S, Judge:

¶1 Patrick Dulin appeals his conviction and sentence for one
count of shoplifting with two or more predicate offenses. After searching
the entire record, Dulin’s defense counsel identified no arguable question
of law that was not frivolous. Therefore, in accordance with Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), defense
counsel asked this Court to search the record for fundamental error. Dulin
was granted an opportunity to file a supplemental brief in propria persona
and did so. After reviewing the entire record, we reject the arguments
raised in Dulin’s supplemental brief, and we find no error. Accordingly,
Dulin’s conviction and sentence are affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 On August 10, 2015, Dulin walked into a Walmart in
Chandler, took a laptop computer from a display case, and left the store
with it.1 The next day, a Walmart loss prevention officer reviewed security
footage and recognized the man who took the laptop as Dulin, a “regular
customer in the store.” He reported the theft to the Chandler Police
Department. The assigned officer also recognized Dulin, whom he had
known for approximately thirty years, as the man in the surveillance video.
After being advised of his rights pursuant to Miranda v. Arizona, 384 U.S.
436, 468-70 (1966), Dulin denied stealing the laptop but questioned why
“wouldn’t something like [the laptop] be locked down.”

¶3 Dulin was indicted for one count of shoplifting with two or
more predicate offenses. At trial, the officers identified Dulin as the man
who stole the laptop from Walmart. The prosecution played the video of
Dulin stealing the laptop for the jury as the police officer narrated and
presented still photographs, taken from the surveillance video, along with

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

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photos of Dulin at the time of the theft for comparison. The State also
admitted records of Dulin’s 2013 and 2014 shoplifting convictions.

¶4 Dulin moved unsuccessfully for a directed verdict, and the
jury convicted him as charged. Outside the presence of the jury, Dulin
admitted having been convicted of four prior felony offenses. After an
unsuccessful motion for new trial, the trial court sentenced him as a non-
dangerous, repetitive offender to the minimum term of eight years’
imprisonment and credited him with 856 days of presentence incarceration.
Dulin timely appealed, and we have jurisdiction pursuant to Arizona
Revised Statutes (A.R.S.) §§ 12-120.21(A)(1),2 13-4031, and -4033(A)(1).

DISCUSSION

I. Admission of Surveillance Tape

¶5 Within his supplemental brief, Dulin argues the trial court
erred by not admitting a tape of his entire interview with police. Generally,
we review evidentiary rulings for an abuse of discretion, State v. Tucker, 215
Ariz. 298, 313, ¶ 46 (2007) (citing State v. McGill, 213 Ariz. 147, 154, ¶ 30
(2006), but “we cannot require trial judges sua sponte to rule on issues not
raised before them.” State v. Cannon, 148 Ariz. 72, 76 (1985). The record
shows that Dulin presented the interview excerpts to the jury and his
attorney specifically placed the excerpts in context of the whole interview.
Upon this record, we find no reversible error.

II. Sufficiency of the Evidence

¶6 Dulin argues the State presented insufficient evidence to
support his conviction. Specifically, Dulin argues he is not the man in the
surveillance video.3

¶7 When reviewing the sufficiency of the evidence, “[t]he
relevant question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” State v. Cox, 217 Ariz. 353, 357, ¶ 22 (2007) (quoting Jackson v. Virginia, 443 U.S. 307, 319

2 Absent material changes from the relevant date, we cite the current
version of statutes and rules.

3 Dulin also argues the man in the surveillance video could not be him
because that man in the video did not have any neck tattoos. However, this
argument is not supported by the record.

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(1979)). Therefore, we will affirm a conviction so long as “substantial
evidence supports the jury’s verdict, viewing the facts in the light most
favorable to sustaining the jury verdict.” Id. (quotation omitted).
Substantial evidence may exist even where conflicting evidence is
presented. See State v. Flowers, 110 Ariz. 566, 567 (1974) (citing State v. Rivera, 94 Ariz. 45, 50 (1963)).

¶8 A person is guilty of shoplifting with two or more predicate
offenses if he, while in a place that sells merchandise, “knowingly obtains
such goods of another with the intent to deprive that person of such goods
by . . . removing any of the goods from . . . within the establishment without
paying the purchase price,” and has “previously committed or been
convicted within the past five years of two or more offenses involving
burglary, shoplifting, robbery, organized retail theft or theft.” A.R.S. § 13-
1805(A)(1), (I). The record contains sufficient evidence upon which the jury
could determine beyond a reasonable doubt that Dulin stole a laptop from
Walmart and had committed two predicate offenses. Dulin’s suggestion
that the officers misidentified him presents a question of credibility left
entirely to the jury. See State v. Bustamante, 229 Ariz. 256, 258, ¶ 5 (App.
2012) (“The credibility of witnesses and the weight given to their testimony
are issues for the jury, not the court.”).

III. Juror Misconduct

¶9 Dulin argues that the jurors committed misconduct when
they used a computer to zoom in on a still photo from the surveillance
video. A jury may experiment with evidence “so long as those experiments
‘do not go beyond the lines of evidence introduced into court and thus
constitute the introduction of new evidence in the jury room.’” State v.
Gomez, 211 Ariz. 111, 113, ¶ 8 (App. 2005) (citing Rossel v. Volkswagen of Am.,
147 Ariz. 160, 172 (1985)). However, jurors using technology to “enhance[]
. . . visual acuity . . . is not experimentation unless there is some indication
that the [technology] produced additional evidence.” Id. (citing State v.
Griffin, 116 N.M. 689, 696 (1993)).

¶10 The record reflects that the jurors only used the computer to
magnify a still photo from the surveillance video. There is no indication
that the jurors experimented with the photo to distort the evidence or to
create new evidence. Accordingly, we find no evidence of juror
misconduct.

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IV. Unwritten Plea Offer

¶11 Dulin argues that he never received a written plea offer from
the State. While plea agreements “shall be reduced to writing,” Ariz. R.
Crim. P. 17.4(b), the State is not required to make any plea offer and the
offer itself need not be in writing, see Rivera-Longoria v. Slayton, 228 Ariz.
156, 159, ¶ 13 (2011) (“The prosecution retains discretion to determine
whether to make a plea offer . . . and the other particulars of plea
bargaining.”); State v. Darelli, 205 Ariz. 458, 465, ¶ 25 (App. 2003) (“The State
is not required to extend any plea offer. The defendant is free to accept or
reject any offer that is made.”). Moreover, the record reflects Dulin rejected
the State’s plea offer after receiving a Donald advisement. See State v.
Donald, 198 Ariz. 406 (App. 2000). Accordingly, Dulin fails to show error
on this basis.

V. Timeliness of Sentencing

¶12 Finally, Dulin argues he was not timely sentenced for the
offense. Trial courts must sentence convicted defendants “no less than 15
nor no more than 30 days after the determination of guilt.” Ariz. R. Crim.
P. 26.3(a)(1). Rule 26.3(b) gives courts discretion to continue sentencing for
good cause, “but the new date should be no later than 60 days after the
determination of guilt.” See also State v. Cornwall, 114 Ariz. 502, 504 (App.
1976) (finding that when both parties agree upon, and courts find good
cause to grant, time extensions before sentencing, it is not reversible error
to do so). Here, although Dulin was sentenced more than sixty days after
the determination of guilt, the delay was not reversible error because it was
requested by Dulin. Dulin filed two unopposed motions to continue
sentencing in order to investigate his claim of juror misconduct and prepare
his motion for new trial. Although the motion for new trial was ultimately
unsuccessful, Dulin’s requested delay in sentencing did not prejudice him.
See State v. Young, 112 Ariz. 361, 363 (1975) (citing State v. Smith, 112 Ariz.
208, 209 (1975) (finding no error in continuing sentencing when the
defendant showed no prejudice). Therefore, we find no reversible error.

VI. Fundamental Error Review

¶13 Further review reveals no fundamental error. See Leon, 104
Ariz. at 300 (“An exhaustive search of the record has failed to produce any
prejudicial error.”). All the proceedings were conducted in compliance
with the Arizona Rules of Criminal Procedure. So far as the record reveals,
Dulin was represented by counsel at all stages of the proceedings and was
present at all critical stages including the entire trial and the verdict. See

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State v. Conner, 163 Ariz. 97, 104 (1990) (right to counsel at critical stages)
(citations omitted); State v. Bohn, 116 Ariz. 500, 503 (1977) (right to be
present at critical stages). The jury was properly comprised of eight jurors,
and the record shows no evidence of juror misconduct. See A.R.S. § 21-
102(B); Ariz. R. Crim. P. 18.1(a). The trial court properly instructed the jury
regarding the elements of the charged offenses, the State’s burden of proof,
and the presumption of Dulin’s innocence. At sentencing, Dulin was given
an opportunity to speak, and the court stated upon the record both the
evidence and materials it considered and the factors it found in imposing
the sentences. See Ariz. R. Crim. P. 26.9, 26.10. Additionally, Dulin’s
sentence was within the statutory range.4 A.R.S. § 13-703(C), (J).

CONCLUSION

¶14 Dulin’s conviction and sentence are affirmed.

¶15 Defense counsel’s obligations pertaining to Dulin’s
representation in this appeal have ended. Defense counsel need do no more
than inform Dulin 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).

¶16 Dulin 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. 31.21. Upon the Court’s own motion, we also grant Dulin thirty days
from the date of this decision to file an in propria persona motion for
reconsideration.

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

4 The record shows Dulin served 855 days of presentence
incarceration. Although the trial court erroneously awarded Dulin an extra
day of credit, the error is not fundamental because it did not prejudice him.
See State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018) (citing State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 19-20 (2005)).

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