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(Not for Publication — Rule 111, Rules of the Arizona Supreme Court)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

PORTLEY, Judge

¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). We have been advised by counsel for Defendant Dennis Edward Dwyer that he has searched the entire record and has been unable to discover any arguable questions of law. Accordingly, he has filed a brief requesting us to conduct an Anders review of the record. Mr. Dwyer submitted a letter as a supplemental brief that was forwarded for our consideration.

FACTS1

¶2 Defendant was discovered in a house he did not own by the owner during the morning of November 21, 2007. The owner called 9-1-1, tried to keep Defendant sitting in the house, but was pushed aside. The homeowner, however, followed Defendant. Outside of the house, Defendant raised his fist at the homeowner as if he was going to punch the homeowner who was three to four feet away. Later, Defendant threw a rock at the homeowner who continued to follow him, but the rock missed its mark. Subsequently, the homeowner tackled the Defendant, and while he was being held down, Defendant apologized and said, "he would do his time."

¶3 Defendant was subsequently charged with burglary in the second degree, a class 3 felony; aggravated assault, a class 3 and dangerous felony; and possession of burglary tools, a class 6 felony. Prior to trial, Defendant participated in two settlement conferences but refused the proffered plea agreement. Although he was found incompetent to stand trial, he was later restored to competency.

¶4 On the first day of trial, Defendant telephonically advised the court that he did not want to be present because his medications were making him sleepy. His request was granted, the jury was selected and the trial began. Defendant, however, was present the next day and testified on his own behalf. Despite his testimony, he was convicted of burglary in the second degree and aggravated assault, a dangerous offense. The jury found him not guilty of possession of burglary tools. The jury later found as aggravators that the offense threatened the infliction of serious physical injury and caused emotional harm to the victim.

¶5 Because Defendant had admitted that he had prior felonies when he testified, the court found that he had two or more prior historical felonies. Defendant was then sentenced to concurrent fifteen-year prison terms, and given 580 days of presentence incarceration credit. Defendant was subsequently allowed to file a delayed appeal. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, and -4033(A)(1) (West 2013).

DISCUSSION

¶6 We have read and considered counsel's brief and Defendant's supplemental brief, and have searched the entire record for reversible error. See Leon, 104 Ariz. at 300, 451 P.2d at 881.

¶7 Defendant, in his supplemental brief, raises factual issues that we address for fundamental error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). First, despite his trial testimony that he did not touch anything in the house other than the door, he claims it was error for the police not to submit any forensic evidence that his fingerprints or DNA were found in the house. Similarly, and despite admitting to the jury that he had the rock in his hand but only brandished it, he contends that the rock the police retrieved a few days later should contain his fingerprints.

¶8 The absence of fingerprint or DNA evidence does not create error. The jury heard from the homeowner and Defendant. Both told the jury Defendant was in the house. Both told the jury that Defendant picked up a rock. The jury had to weigh the rest of their testimony, determine their credibility, and decide the facts in order to determine if the State had proven its case beyond a reasonable doubt. State v. Piatt, 132 Ariz. 145, 150-51, 644 P.2d 881, 886-87 (1981). Because there is sufficient evidence to support the verdict, the absence of fingerprint or DNA evidence did not create error. Accordingly, the absence of evidence does not warrant a new trial.

¶9 Defendant next contends that the victim testified differently about why he had returned home that morning than his statement to the police. Defendant uses the argument to then discuss a version of the events that led him into the house and resulted in the confrontation with the homeowner even though it differed from his trial testimony. Defendant, however, had the opportunity to testify and did testify to his version of the events. He also had the opportunity to cross-examine the homeowner and point out any inconsistencies in order to undermine his credibility. Consequently, we find no error warranting a new trial.

¶10 After reviewing the record for fundamental error and having addressed Defendant's supplemental arguments, we find no fundamental error. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. The record, as presented, reveals that Defendant was represented by counsel at all stages of the proceedings. The jury was properly instructed. And, the sentences imposed were within the statutory limits.

¶11 After this decision is filed, counsel's obligation to represent Defendant in this appeal has ended. Counsel must only inform Defendant of the status of the appeal and Defendant's future options, unless counsel identifies 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). Defendant may, if desired, file a motion for reconsideration or petition for review pursuant to the Arizona Rules of Criminal Procedure.

CONCLUSION

¶12 Based on the foregoing, we affirm Defendant's convictions and sentences.

MARGARET H. DOWNIE, Presiding Judge, PHILLIP HALL, Judge, concurring.