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

(Not for Publication — Rule 111, Rules of the Arizona Supreme Court)

MEMORANDUM DECISION

MARGARET H. DOWNIE, Presiding Judge.

¶1 Hanson Eugene Fields, Jr., timely appeals his conviction for second degree murder, a class one dangerous felony, in violation of Arizona Revised Statutes ("A.R.S.") section 13-1104. Pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), defense counsel has searched the record, found no arguable question of law, and asked that we review the record for fundamental error. See State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Fields filed a supplemental brief in propria persona that we have considered. On appeal, we view the evidence in the light most favorable to sustaining the conviction. State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981), cert. denied, 459 U.S. 882 (1982).

FACTS AND PROCEDURAL HISTORY

¶2 E.M. and a friend met Fields at a party; E.M. later gave Fields a ride. During the ride, Fields called his wife, Jeral, and asked to speak with their roommate, Jermaine Bernard. E.M. parked in front of an apartment; Fields told E.M. to wait for him while he went inside.

¶3 Jeral and Bernard were inside the two-bedroom apartment; the Fields' one-year-old child was in a playpen in their bedroom. Jeral heard Fields and Bernard arguing and then heard a loud sound like two pieces of board hitting together. Outside, E.M. heard a "shot" from inside the residence.

¶4 When Jeral walked toward the bedroom, Fields said, "I don't want you to see it." Jeral saw Bernard lying motionless on the floor. Fields, Jeral, and the child left the apartment. Jeral asked Fields what had happened, and he responded that he would not "let no one hit him in front of his baby."

¶5 From the car, E.M. could hear Jeral repeatedly asking Fields why he "did that." Jeral and the child got in the backseat of E.M.'s car. Fields hit the car with his hand and demanded that E.M. unlock the front passenger door, but E.M. refused to do so because Fields had a gun. Jeral and Fields left the baby in E.M.'s car and went back inside the apartment; E.M. drove away. When Fields and Jeral discovered that E.M. was gone, Fields left, and Jeral called 9-1-1.

¶6 Officer Ferrell responded to the scene. Jeral advised him that there was a person "bleeding in her apartment" and that her child was missing; she did not tell the officer about leaving the baby in E.M.'s car because Fields had told her not to. Officers found Bernard's body on the floor next to a spent shell casing.

¶7 Fields returned and told officers his wife had called to say there was an emergency, so he ran home. Jeral initially told officers she left the child with Bernard while she went to the store, discovering Bernard's body when she returned. In the meantime, E.M. brought the child to police. After officers told Jeral that E.M. had returned the child, she changed her story, telling them about Fields' presence in the apartment earlier that night and about hearing the sound of "two pieces of board clap together." E.M. and his friend identified Fields from a photo lineup.

¶8 Fields was indicted on one count of second degree murder, a class one dangerous felony. A six-day jury trial ensued. Fields asked to represent himself at trial. After finding that he voluntarily, intelligently, and knowingly waived counsel, the court granted his request but appointed advisory counsel.

¶9 Jeral, E.M. and his friend, and several law enforcement officers testified during the State's case-in-chief. The medical examiner testified that Bernard died from a gunshot wound to the head and that his death was a homicide. A forensic scientist testified that Fields' hands tested positive for gunshot residue.

¶10 At the conclusion of the State's case, Fields moved for a judgment of acquittal pursuant to Rule 20, Arizona Rules of Criminal Procedure ("Rule"). The motion was denied. The jury found Fields guilty and found the offense to be dangerous. Fields was sentenced to a 16-year presumptive term of imprisonment, with 642 days' pre-sentence incarceration credit.

DISCUSSION

¶11 We have read and considered the briefs submitted by Fields and his counsel and have reviewed the entire record. Leon, 104 Ariz. at 300, 451 P.2d at 881. We find no fundamental error. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure, and the sentence imposed was within the statutory range. Fields was present at all critical phases of the proceedings. The jury was properly impaneled and instructed. The jury instructions were consistent with the offenses charged. The record reflects no irregularity in the deliberation process.

¶12 In his supplemental brief, Fields identifies several issues, which we address separately.

I. Double Jeopardy

¶13 Fields contends he was subjected to prosecution for the same crime twice: "once when arrested and charged and, twice when [he] went to trial on the same charge that was dismissed." We disagree.

¶14 Fields was initially charged by direct complaint with second degree murder. The State later filed a supervening indictment charging Fields with the same offense. A supervening indictment replaces the previous charging document. State v. Superior Court (Hannah), 137 Ariz. 534, 536, 672 P.2d 199, 201 (App. 1983) (citation omitted). Fields was prosecuted for one count of second degree murder. No double jeopardy violation occurred.

II. Evidentiary Issues

¶15 Fields contends that although the State disclosed 33 witnesses, it called only 9 to testify at trial. He concludes the remaining witnesses were "suppressed and held favorable evidence to [his] defense." He does not cite to the record in support of his contention, and our review of the record reveals no support for it. Cf. State v. Workman, 123 Ariz. 501, 503, 600 P.2d 1133, 1135 (App. 1979) (the decision whether to call a witness is a strategic one).

¶16 Fields also takes issue with certain items of evidence and asserts error because the State "relied solely on circumstantial evidence and inference." However, a criminal conviction may be based solely on circumstantial evidence. State v. Love, 106 Ariz. 215, 216, 474 P.2d 806, 807 (1970) (citation omitted). The probative value of evidence is not reduced because it is circumstantial. State v. Murray, 184 Ariz. 9, 31, 906 P.2d 542, 564 (1995) (citation omitted). Fields cross-examined many of the State's witnesses about whether anyone saw him shoot Bernard; they all denied that any eyewitness to the crime existed. The jury was properly instructed regarding its treatment of circumstantial evidence. See Love, 106 Ariz. at 216, 474 P.2d at 807 (citation omitted) (the court is required to instruct as to the effect of circumstantial evidence).

¶17 The State presented sufficient evidence of guilt to submit the case to the jury. See Rule 20 (judgment of acquittal appropriate only if there is "no substantial evidence to warrant a conviction"); State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) ("Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction."). To the extent Fields believes the evidence should have produced a different verdict, "[n]o rule is better established than that the credibility of the witnesses and the weight and value to be given to their testimony are questions exclusively for the jury." State v. Clemons, 110 Ariz. 555, 556-57, 521 P.2d 987, 988-89 (1974).

¶18 Fields also contends a prosecution witness improperly testified that Fields hit his wife in 2004 and caused her to lose a baby. However, the transcript reveals that it was Fields who elicited this testimony.1 He may not now assert error arising from that testimony. See State v. Lucero, 223 Ariz. 129, 136, ¶ 20, 220 P.3d 249, 256 (App. 2009) (a party "invites prejudicial testimony by being the first party to elicit the testimony"); see also State v. Logan, 200 Ariz. 564, 565-66, ¶ 9, 30 P.3d 631, 632-33 (2001) ("[W]e will not find reversible error when the party complaining of it invited the error.").

III. Wife's Testimony

¶19 Finally, Fields contends the court erred by compelling his wife to testify against him. In some criminal proceedings, a party spouse may prevent the other spouse from being examined as to events occurring and any communications made by one spouse to the other during the marriage. A.R.S. § 13-4062(1). However, the privilege is unavailable when certain "serious offenses," including second degree murder, have been charged. See also A.R.S. § 13-706(F)(1)(b) (second degree murder is a "serious offense"). Because Fields was charged with second degree murder, the statutory privilege did not bar his wife's testimony.

CONCLUSION

¶20 We affirm Fields' conviction and sentence. Counsel's obligations pertaining to Fields' representation in this appeal have ended. Counsel need do nothing more than inform Fields of the status of the appeal and his future options, unless counsel's review reveals 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). On the court's own motion, Fields shall have 30 days from the date of this decision to proceed, if he desires, with an in propria persona motion for reconsideration or petition for review.

MAURICE PORTLEY, Judge and PHILIP HALL, Judge, concurring.