NOT FOR PUBLICATION

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.

MEMORANDUM DECISION

ESPINOSA, Judge.

¶ 1 After a jury trial, Joseph Mendoza was convicted of armed robbery and two counts of aggravated assault with a deadly weapon, all dangerous offenses. He was sentenced to concurrent, presumptive prison terms, the longest of which is 10.5 years. Counsel then filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999), asserting she had reviewed the record but found no arguable issue to raise on appeal. Consistent with Clark, 196 Ariz. 530, ¶ 32, 2 P.3d at 97, she provided "a detailed factual and procedural history of the case with citations to the record" and asked this court to search the record for error. Mendoza has not filed a supplemental brief.

¶ 2 To prove Mendoza committed armed robbery, the state was required to show that he committed robbery pursuant to A.R.S. § 13-1902 while he was "armed with a deadly weapon or a simulated deadly weapon" or that he "[u]se[d] or threaten[ed] to use a deadly weapon or dangerous instrument or a simulated deadly weapon." A.R.S. § 13-1904(A). A person commits robbery if he or she, "in the course of taking any property of another from his person or immediate presence and against his will, . . . threatens or uses force against any person with intent either to coerce surrender of property or to prevent resistance to such person taking or retaining property." § 13-1902(A). We requested supplemental briefing from the parties to address whether there was sufficient evidence to support Mendoza's conviction for armed robbery, specifically whether he had "threaten[ed] or use[d] force against any person with intent either to coerce surrender of property or to prevent resistance to such person taking or retaining property." Id.

¶ 3 After considering the arguments of the parties, and in light of our obligation to view the evidence in the light most favorable to sustaining the verdict, see State v. Tamplin, 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App. 1999), we conclude sufficient evidence supports the jury's findings of guilt for both aggravated assault and armed robbery, see A.R.S. §§ 13-1204(A)(2), 13-1904(A). Mendoza took a package of beer from a drugstore and walked outside without paying for it and, when confronted by the store manager, turned and pointed a firearm at him. The manager heard a click and then heard a gunshot as Mendoza turned toward him a second time.

¶ 4 The store manager testified at trial that the beer had been on the ground as he approached Mendoza. If that testimony is correct, Mendoza could not have committed robbery because there was no evidence he used force of any kind before firing the gun at the manager, and he had abandoned the beer and was walking away from it before shooting at the manager. See § 13-1902(A). As the state correctly points out, however, the manager acknowledged during cross-examination that he could not remember whether Mendoza had been holding the beer when he first approached him. And security camera footage shows Mendoza holding an item under his arm as he turned and pointed his hand toward the manager— consistent with aiming and firing a handgun—as he walked away. A jury could conclude the item carried by Mendoza was the package of beer—it was consistent in size and shape to the beer Mendoza had taken from the store. And Mendoza's mother, who had seen a portion of the incident from her apartment window, claimed that she had seen a man "trying to take" the beer from Mendoza's hand. Thus, despite the store manager's equivocal testimony, the evidence was sufficient for the jury to have concluded Mendoza used force in the course of taking the beer. Although he claims it would have been "impossible" for him to "have been holding a 12 pack of beer and shooting a gun at the same time," Mendoza cites no evidence supporting this proposition, and we find nothing inherently impossible in that version of events; thus, even if such evidence existed, it would be for the jury to weigh. See State v. Williams, 209 Ariz. 228, ¶ 6, 99 P.3d 43, 46 (App. 2004) (where record contained conflicting evidence, jury was responsible for weighing evidence and determining credibility of witnesses); cf. United States v. Kuzniar, 881 F.2d 466, 470-71 (7th Cir. 1989) (trial judge may determine witness credibility in motion for new trial only when "testimony contradicts indisputable physical facts or laws" and thus could not be believed).

¶ 5 Mendoza's prison terms are within the statutory limits and were imposed properly. A.R.S. §§ 13-704(A), 13-1204(D), 13-1904(B). The sentencing minute entry, however, provides that the fees and assessments the trial court had imposed were "reduced to a Criminal Restitution Order" (CRO). We requested the parties also address in their supplemental briefs whether the trial court's entry of a CRO at sentencing constituted fundamental error in light of our recent decision in State v. Cota, 234 Ariz. 180, 319 P.3d 242 (App. 2014). We agree with the parties that it does. We concluded in Cota that § 13-805, A.R.S., does not permit a trial court to enter at sentencing a CRO for fees and assessments, but only for restitution to a victim. Id. ¶ 15. Thus, the entry of such a CRO "`constitutes an illegal sentence, which is necessarily fundamental, reversible error.'" State v. Lopez, 231 Ariz. 561, ¶ 2, 298 P.3d 909, 910 (App. 2013), quoting State v. Lewandowski, 220 Ariz. 531, ¶ 15, 207 P.3d 784, 789 (App. 2009).

¶ 6 Pursuant to our obligation under Anders, we have searched the record for fundamental, reversible error and found none save the improper entry of the CRO. See State v. Fuller, 143 Ariz. 571, 575, 694 P.2d 1185, 1189 (1985) (Anders requires court to search record for fundamental error). Accordingly, we vacate the CRO but Mendoza's convictions and sentences are otherwise affirmed.