THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

NORRIS, Judge.

¶ 1 Frederick Angus Miller, Jr. timely appeals from his convictions and sentences for one count of kidnapping, a class 2 felony; one count of aggravated assault, a class 6 felony; seven counts of sexual assault, class 2 felonies; and one count of robbery, a class 4 felony. After searching the record on appeal and finding no arguable question of law that was not frivolous, Miller's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L. Ed. 2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking this court to search the record for fundamental error. This court granted counsel's motion to allow Miller to file a supplemental brief in propria persona, and Miller did so.

¶ 2 We reject the arguments Miller raised in his supplemental brief and through counsel, and after reviewing the entire record, find no fundamental error. Therefore, we affirm his convictions and sentences.

FACTS AND PROCEDURAL BACKGROUND1

¶ 3 Early in the morning on January 19, 2010, the victim was walking to a bus stop when a man grabbed her by the neck and took her behind a nearby local business. He threatened her, slapped her, and forced her into seven separate sexual acts. He then took approximately $11 from her and left.

¶ 4 The victim returned home and her mother called the police. Using records of calls made after the incident, the police traced the victim's missing cell phone and found it in Miller's possession. Police arrested Miller and the victim identified him in a photo-lineup as her assailant.

DISCUSSION

I. Miller's Supplemental Brief

¶ 5 As we construe his supplemental brief, Miller argues the evidence was insufficient to support his convictions because the victim was unable to identify him in court. We reject this argument. The parties presented ample evidence from which the jury could have concluded the State had established his identity beyond a reasonable doubt, including Miller's testimony he met the victim the morning of January 19, 2010 and had consensual oral sex with her, the victim's identification of Miller in the photo-lineup, which was permissibly admitted, see State v. Jackson, 24 Ariz.App. 7, 9-10, 535 P.2d 35, 37-38 (1975), and DNA evidence taken from the victim which was "[c]onsistent with semen" and the major source of which "Miller matche[d] . . . at all 16 loci" tested.

¶ 6 Miller also attacks the sufficiency of the evidence on his convictions for the counts which required proof of "sexual intercourse," which is statutorily defined as "penetration into the penis, vulva or anus by any part of the body." Ariz. Rev. Stat. ("A.R.S.") §§ 13-1401(3) (1998), -1406 (2009). He argues the State did not present DNA evidence recovered from the victim's vagina and the victim "lied under oath when she claimed sexual penetration of her vagina" because the claim "was not corroborated by the medical examination." We disagree. Although the victim's testimony was sufficient2 and DNA evidence was not required, see State v. Verdugo, 109 Ariz. 391, 393, 510 P.2d 37, 39 (1973) (victim's uncorroborated testimony sufficient to support conviction), Miller's argument is further undercut by the forensic nurse examiner's testimony she found injuries to the victim's vagina caused by "a penetrating blunt force injury." Given this evidence, the absence of the particular evidence Miller points out is of little consequence. See State v. Hall, 204 Ariz. 442, 454, ¶ 49, 65 P.3d 90, 102 (2003) (citation omitted) (physical evidence not required to sustain conviction if totality of circumstances demonstrates guilt beyond a reasonable doubt).

¶ 7 Finally, Miller argues he was denied a fair trial because his counsel did not adequately investigate his case or the State's DNA evidence. These arguments are not properly before us; ineffective assistance of counsel claims must be raised in a petition for post-conviction relief under Arizona Rule of Criminal Procedure 32 and cannot be considered on direct appeal. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002).

II. Additional Matters

¶ 8 The superior court, over Miller's counsel's objection, permitted the State, in its case-in-chief, to play a tape of statements Miller made to police after he had invoked his Fifth Amendment rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed. 2d 694 (1966). See State v. Szpyrka, 220 Ariz. 59, 61, ¶¶ 2-9, 202 P.3d 524, 526 (App. 2008). The superior court did not abuse its discretion in denying Miller's motion to preclude these statements because his counsel did not object to the use of the statements until halfway through the second day of trial. See Ariz. R. Crim. P. 16.1(b) ("[a]ll motions shall be made no later than 20 days prior to trial"); see also State v. Neese, 126 Ariz. 499, 506-07, 616 P.2d 959, 966-67 (App. 1980) ("[S]uppression issues must be timely raised or they are waived.").

¶ 9 The record also reflects the court, relying on Arizona Rule of Evidence ("Rule") 609, allowed the State to cross-examine or impeach Miller with three prior felony convictions, two of which were from Michigan and one of which was from Arizona. The Michigan convictions occurred in 1995 and 1996 and the sentences were for 3-5 years and 2-4 years respectively. The record suggests Miller was sentenced to prison on both convictions and when his term of imprisonment ended on the 1995 conviction he remained in prison and began to serve a term of imprisonment on the 1996 conviction. In pertinent part, Rule 609(b) stated "[e]vidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date."

¶ 10 Although the court correctly determined the Arizona prior conviction fell within the ten-year period, it is not clear to us whether the court correctly determined the two Michigan prior convictions were within the ten years. First, despite the language of the Rule quoted above, the transcript of the pretrial hearing on November 29, 2010 seems to reflect that at least Miller's 1995 Michigan prior conviction may have been over ten years old because he had been released from prison on that conviction more than ten years earlier, although he admittedly remained in prison on the 1996 conviction. Second, because neither the court nor the State made the Michigan "pen pack" part of the record, we cannot determine when Miller was released from confinement on the 1996 conviction and thus whether his release from that conviction fell within the ten-year period. Accordingly, the record fails to demonstrate with any clarity whether the two Michigan prior convictions were within the ten-year period and could be used for impeachment under the Rule.

¶ 11 Assuming without deciding the court should not have allowed the State to use the Michigan prior convictions to impeach Miller at trial, we nevertheless find the error non-prejudicial based on the review we are required to apply in an Anders appeal which is, as noted, for fundamental error. See State v. Siplivy, 228 Ariz. 305, ___, ¶ 14, 265 P.3d 1104, 1108 (App. 2011) (Anders obligation to review for "fundamental, reversible error").

¶ 12 Here, the State properly impeached Miller with his Arizona prior conviction, Miller's defense at trial was that he was a drug dealer and had traded the victim illicit drugs for sex, and, in his cross-examination of his probation officer, Miller affirmatively elicited her testimony that he had committed two other felonies that were even older than the Michigan prior convictions discussed above. Thus, we conclude the court's admission of the two Michigan priors for impeachment, even assuming error, was not fundamental, reversible error. See State v. Bolton, 182 Ariz. 290, 302-03, 896 P.2d 830, 842-43 (1995) (admission of priors, even if error, was harmless when "defendant's testimony concerning his own criminality . . . was wholly independent of his prior convictions and was at least as damaging"); see also State v. Jones, 185 Ariz. 471, 485-86, 917 P.2d 200, 214-15 (1996) (admission harmless when there was overwhelming evidence of the crime and two other priors were properly admitted).

III. Anders Review

¶ 13 We have reviewed the entire record for reversible error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Miller received a fair trial. He was represented by counsel at all stages of the proceedings and was present at all critical stages.

¶ 14 The evidence presented at trial was substantial and supports the verdicts. The jury was properly comprised of 12 members and the court properly instructed the jury on the elements of the charges, Miller's presumption of innocence, the State's burden of proof, and the necessity of a unanimous verdict. The superior court received and considered a presentence report, Miller spoke at sentencing, and his sentences were within the range of acceptable sentences for his offenses. A.R.S. §§ 13-703(B), (H) (2009), -1406(B) (2009).

CONCLUSION

¶ 15 We decline to order briefing and affirm Miller's convictions and sentences.

¶ 16 After the filing of this decision, defense counsel's obligations pertaining to Miller's representation in this appeal have ended. Defense counsel need do no more than inform Miller of the outcome of this appeal and his future options, unless, upon review, counsel finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984).

¶ 17 Miller has 30 days from the date of this decision to proceed, if he wishes, with an in propria persona petition for review. On the court's own motion, we also grant Miller 30 days from the date of this decision to file an in propria persona motion for reconsideration.

MICHAEL J. BROWN, Presiding Judge, PHILIP HALL, Judge, concurring.