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 Jacob Isreal Randles timely appeals from his convictions and sentences for kidnapping, sexual assault, aggravated assault, and weapons misconduct. After searching the record on appeal and finding no arguable question of law that was not frivolous, Randles' 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 Randles to file a supplemental brief in propria persona, but Randles did not do so. Through counsel, Randles argues the superior court improperly admitted evidence, including "other acts" evidence under Arizona Rule of Evidence 404(b) or (c). We reject Randles' arguments, and, after reviewing the entire record, find no fundamental error and therefore affirm his convictions and sentences.

FACTS AND PROCEDURAL BACKGROUND1

¶2 On October 29, 2007, Randles was alone in his brother Daniel's apartment with T.T., a 21-year-old woman who had been temporarily staying at the apartment. T.T. testified she "got a weird feeling" and attempted to leave the apartment, but Randles grabbed her and slammed the door. Randles began "cutting [T.T.] on [her] neck with something . . . punching [her], slamming [her] into stuff, throwing [her] around, [and] choking [her]." Randles then forced T.T. into a bedroom and sexually assaulted her. After Randles left the apartment, T.T. called the police and gave them a description of Randles, but the police were not able to locate him that night.

¶3 The following week, on November 4, 2007, Randles and his brother Daniel attended a party with two young women, A.M. and E.G. After the party, A.M. and E.G. returned to Daniel's apartment with Daniel and Randles. E.G. had consensual sex with Daniel in a bedroom, then fell asleep. Randles forced A.M. into another bedroom, pushed her down on the bed, and sexually assaulted her. When Randles left the bedroom, A.M. escaped the apartment through a window and called the police at a neighbor's home. Randles then went into the bedroom where E.G. was sleeping and assaulted her physically and sexually. While Randles was assaulting E.G., the police arrived outside the apartment and he "started getting phone calls from the police. . . trying to negotiate." The police forcefully entered the apartment after Randles began threatening E.G., and a police officer shot Randles when the officer found him in the bedroom holding a gun to E.G.'s head.

¶4 A grand jury indicted Randles on two counts of kidnapping, as class two dangerous felonies; five counts of sexual assault, as class two dangerous felonies; two counts of aggravated assault, as class three dangerous felonies; one count of kidnapping, as a class two felony; one count of sexual assault, as a class two felony; and one count of misconduct involving weapons, a class four felony. The superior court initially found Randles was not competent to stand trial, but later found Randles' competency had been restored. After a trial, the jury found Randles guilty on all counts.

¶5 The superior court sentenced Randles, as a repetitive offender with two prior historical felonies, to prison terms of 15.75 years for each of his class two felonies, 11.25 years for each of his class three felonies, and ten years for his class four felony. Pursuant to Arizona Revised Statutes section 13-1406C (2003), the superior court ordered Randles' sentences for crimes other than sexual assault to run concurrently with his first 15.75 year sentence for sexual assault and ordered the remaining sexual assault sentences to run consecutively to the first sentence and to each other. The superior court also ordered Randles' second 11.25 year sentence for aggravated assault to run consecutively with his sentences for sexual assault. Thus, Randles was sentenced to a total of 105.75 years in prison. The superior court gave Randles 1171 days of presentence incarceration credit.

DISCUSSION

I. Admission of Evidence of Separate Offenses

¶6 Before trial, Randles moved to sever the counts relating to A.M. and E.G. from those relating to T.T., arguing that "a joint trial of all counts would substantially prejudice Mr. Randles[]." The superior court denied Randles' motion to sever, finding the separate offenses were properly joined under all three bases listed in Arizona Rule of Criminal Procedure ("Rule") 13.3, and, for purposes of 13.3(a)(1), the evidence relating to each occurrence was cross-admissible under Arizona Rules of Evidence 404(b) and (c). Randles did not renew his motion to sever during trial.

¶7 On appeal, Randles, through counsel, challenges the superior court's "finding that all counts were properly joined. . . [because] no evidence was adduced to satisfy the `clear and convincing standard' of the rules." We generally review the superior court's denial of severance for an abuse of discretion, see State v. Prion, 203 Ariz. 157, 162, ¶ 28, 52 P.3d 189, 194 (2002), but we review for fundamental error when, as here, a defendant does not renew his or her motion to sever during trial. See Ariz. R. Crim. P. 13.4(c); State v. Laird, 186 Ariz. 203, 206, 920 P.2d 769, 772 (1996).

¶8 On this record we find no error, let alone fundamental, prejudicial error. The superior court's detailed minute entry denying Randles' motion to sever correctly described the many similarities between the separate offenses supporting joinder under Rule 13.3 and their cross-admissibility under Arizona Rule of Evidence 404. Further, even assuming the superior court should not have allowed evidence of the separate offenses to be presented to the jury, the unique evidence implicating Randles in each offense — including DNA evidence and identification by the victims — was so overwhelming that any presumed error in admitting evidence of the other offenses could not have affected the jury's verdict and therefore could not have prejudiced Randles. See State v. Henderson, 210 Ariz. 561, 567, ¶ 20, 115 P.3d 601, 607 (2005) (to prevail under fundamental error review, "defendant must establish both that fundamental error exists and that the error in his case caused him prejudice."); Laird, 186 Ariz. at 206, 920 P.2d at 772 ("[T]he evidence in this case is so strong . . . that we can say with certainty that he was not denied a fair trial by improper joinder."). We therefore reject Randles' challenge to the superior court's denial of his motion to sever.

II. Admission of Evidence of Prior Offenses

¶9 The superior court permitted the State to present evidence that Randles sexually assaulted a woman in 1997, finding that there was "clear and convincing evidence to show [Randles] committed the [1997] acts" and the evidence was admissible under Arizona Rules of Evidence 404(b) and (c). Randles did not object to the admission of this evidence at trial; indeed, his attorney told the superior court he had "no objection to the testimony regarding the . . . [1997] acts." On appeal, however, Randles challenges, through counsel, the "[a]dmission of the 1997 offense facts under Rule 404(b) or (c). . . [for] failing to satisfy the clear and convincing standard required by the Rules." Because Randles did not object to the admission of this evidence at trial, "[a]bsent a finding of fundamental error, . . . [he] waive[d] the right to raise the issue on appeal." State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991). We find no fundamental error in the superior court's admission of this evidence and therefore reject Randles' argument the court improperly admitted evidence of these prior offenses.

¶10 Randles also challenges the admission of E.G.'s testimony that Randles told her "he wanted the police to kill him . . . [because] he didn't want to go back to prison." Randles did not object to this testimony at trial, nor could he have, as his own attorney elicited it from E.G. Thus, as discussed above, we review only for fundamental error. We find no fundamental error, and reject this argument. III. Anders Review

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

¶12 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, Randles' 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, Randles was given an opportunity to speak at sentencing, and his sentences were within the acceptable range for his offenses.

¶13 We note that although the jury found counts 1-9 were "dangerous" felonies, the superior court's sentencing minute entry incorrectly describes counts 1-9 as "Non Dangerous." We hereby correct the sentencing minute entry to describe counts 1-9 as dangerous. We further note that the superior court's sentencing minute entry and sentencing transcript suggest it applied the relevant sentencing statute in effect at the time of sentencing, Arizona Revised Statutes ("A.R.S.") section 13-703 (2008), rather than the statute in effect at the time Randles committed the offenses, A.R.S. § 13-604(D) (2003). This error was harmless, however, as the applicable sentencing range was exactly the same and the superior court correctly instructed Randles on his possible sentences. We therefore correct the sentencing minute entry to state Randles was sentenced under A.R.S. § 13-604(D).

CONCLUSION

¶14 We decline to order briefing and affirm Randles' convictions and sentences as corrected.

¶15 After the filing of this decision, defense counsel's obligations pertaining to Randles' representation in this appeal have ended. Defense counsel need do no more than inform Randles 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).

¶16 Randles 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 Randles 30 days from the date of this decision to file an in propria persona motion for reconsideration.

MARGARET H. DOWNIE, Judge and LAWRENCE F. WINTHROP, Judge, concurring.