State v. Mewbourn

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JIMMY WAYNE MEWBOURN, JR., Appellant.

No. 1 CA-CR 18-0117
FILED 3-26-2019

Appeal from the Superior Court in Maricopa County
No. CR2017-125173-001
The Honorable Gregory Como, Judge

AFFIRMED

COUNSEL

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

Law Office of Stephen M. Johnson, Inc., Phoenix
By Stephen M. Johnson
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Randall M. Howe 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 Jimmy
Wayne Mewbourn, Jr. has advised this court that counsel found no
arguable questions of law and asks us to search the record for fundamental
error. Mewbourn was convicted of three felonies designated dangerous
and repetitive—attempt to commit second degree murder, Arizona Revised
Statutes (“A.R.S.”) § 13-1104(A)(1); endangerment, A.R.S. § 13-1201(A); and
assisting a criminal street gang, A.R.S. § 13-2321(B)—and one felony
designated non-dangerous repetitive—possession of a weapon by a
prohibited person, A.R.S. § 13-3102(A)(4). Mewbourn was given an
opportunity to file a supplemental brief in propria persona; he has not done
so. Finding no error upon reviewing the record, we affirm Mewbourn’s
convictions and sentences.

FACTS AND PROCEDURAL HISTORY

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

¶3 Late one night in April 2017, Mewbourn began arguing with
Richard Albilar, whom Mewbourn had identified as an individual in bad
standing with the Mexican Mafia. In an alleged attempt to gain acceptance
into the Mexican Mafia, Mewbourn retrieved a handgun from his car as
Albilar and his girlfriend, Elizabeth Smith, were leaving. Mewbourn
approached Albilar’s car and fired a shot at Albilar through the driver-side
window and into Albilar’s left arm. Smith was in the passenger seat next
to Albilar when he was shot.

¶4 At trial, to prove the counts of attempt to commit second
degree murder, endangerment, and possession of a weapon by a prohibited
person, the State introduced the eyewitness testimony of Albilar and Smith
(the victims of the attempted murder and endangerment charges,

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Decision of the Court

respectively); the testimony of the investigating officer; and the testimony
of Smith’s aunt and uncle, Conrad and Naomi Gaitan, who lived at the
house where the events took place.

¶5 As proof of the charge of assisting a criminal street gang,
Albilar testified to being a former member of the Mexican Mafia, and to
currently being in bad standing. Conrad Gaitan testified that he overheard
Mewbourn tell others of his own involvement with the Mexican Mafia, and
was told by Mewbourn just before the shooting that Mewbourn knew
Albilar was “a snitch.” Finally, Detective Donald Bent—the case agent for
this matter—testified to his interview with Mewbourn, during which
Mewbourn admitted to involvement with the Mexican Mafia and to
knowing that Albilar was on the mafia’s hitlist. During Detective Bent’s
testimony, the video recording of his interview of Mewbourn was
published to the jury.

¶6 At the close of the State’s case, Mewbourn’s counsel moved
for a judgment of acquittal pursuant to Arizona Rule of Criminal Procedure
(“Rule”) 20; the court denied the motion. Only Mewbourn and his mother
testified during the defense’s case. On the stand, Mewbourn denied
involvement with the Mexican Mafia, but admitted to knowing that Albilar
was in bad standing with the mafia.

¶7 At the close of evidence, and after no objection by either party,
the court presented the constitutionally required instructions to the jury,
along with the instructions for each of the counts except possession of a
weapon by a prohibited person. The following day, the jury returned guilty
verdicts as to each count. The following week, the jury returned for
presentation of the count of possession of a weapon by a prohibited person,
during which the count was explained to the jury, and Officer Goodale—
the only witness presented that day—testified as to Mewbourn’s prior
convictions. The jury was again presented with instructions, and returned
a guilty verdict the same day. Shortly thereafter, the court called upon the
jurors to decide aggravators—as to three of the four counts, the jury found
aggravators of dangerousness, and that the crimes were committed in
furtherance of a criminal street gang.

¶8 On February 23, 2018, the court conducted the sentencing
hearing in compliance with Mewbourn’s constitutional rights and Rule 26.
The court stated that Mewbourn would be sentenced as a Category 3
offender, given his two prior convictions. Mewbourn did not object. The
court assessed the presumptive sentence as to each count, A.R.S. § 13-703(J),
plus five years for the aggravators, A.R.S. § 13-714, and ruled that the

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sentences would run concurrently: 20.75 years’ incarceration, with 269 days
of pre-incarceration credit.

DISCUSSION

¶9 We review Mewbourn’s convictions and sentences for
fundamental error. See State v. Flores, 227 Ariz. 509, 512, ¶ 12 (App. 2011).
Counsel for Mewbourn 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
reversible error, see Leon, 104 Ariz. at 300, and find none. All the
proceedings were conducted in compliance with the Arizona Rules of
Criminal Procedure. So far as the record reveals, counsel represented
Mewbourn at all stages of the proceedings, and the sentences imposed were
within the statutory guidelines. We decline to order briefing and affirm
Mewbourn’s convictions and sentences.

¶10 Upon the filing of this decision, defense counsel shall inform
Mewbourn 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). Mewbourn 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

¶11 For the foregoing reasons, we affirm Mewbourn’s convictions
and sentences.

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

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