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

WINTHROP, Chief Judge.

¶1 Ali Zugair Aljibory ("Appellant") appeals his convictions and sentences for unlawful discharge of a firearm, disorderly conduct, and misconduct involving weapons. Appellant's counsel filed a brief in accordance with Smith v. Robbins, 528 U.S. 259 (2000); Anders v. California, 386 U.S. 738 (1967); and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that he has searched the record on appeal and found no question of law that is not frivolous. Counsel therefore requests that we review the record for fundamental error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999) (stating that this court reviews the entire record for reversible error). Additionally, this court granted Appellant the opportunity to file a supplemental brief in propria persona, and he has done so, raising several issues that we address.

¶2 We have appellate jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (West 2012),1 13-4031, and 13-4033(A). Finding no reversible error, we affirm.

I. FACTS AND PROCEDURAL HISTORY2

¶3 On April 27, 2011, a grand jury issued an indictment, charging Appellant with Count I, unlawful discharge of a firearm, a class six dangerous felony in violation of A.R.S. § 13-3107; Count II, disorderly conduct, a class six dangerous felony in violation of A.R.S. § 13-2904; and Count III, misconduct involving weapons (as a prohibited possessor), a class four felony in violation of A.R.S. § 13-3102. The State later alleged that Appellant had one non-dangerous historical prior felony conviction. The State also filed an allegation of aggravating circumstances other than prior convictions.

¶4 At trial, the State presented the following evidence: At approximately midnight on the evening of November 20, 2010, Phoenix Police Officers Cuthbertson, Chalmers, and Belsterling responded to a call of a possible burglary at a Phoenix apartment complex, where someone had kicked in an apartment door. As the officers were taking photographs of the door, they heard a single gunshot nearby followed by someone screaming, "Wow, that was loud."

¶5 The officers initially thought someone might be shooting at them; however, their attention soon became focused on the scream, which came from a balcony on the second floor of the apartment complex. The officers drew their guns, approached the balcony, and started giving commands to the three people (two men and a woman) who were on the balcony. Each of the individuals on the balcony, including Appellant, had been drinking alcoholic beverages. Appellant, who was near a covered bench on the balcony, initially told the officers he did not have a gun. When the officers rolled the cover back on the bench, however, they discovered a loaded, black, semi-automatic handgun. The officers secured the handgun and advised Appellant of his rights pursuant to Miranda.3

¶6 Appellant agreed to speak with the officers, and he admitted the handgun was his, he had fired a round from the gun into the air, and he knew it was illegal to fire a gun within the city limits; however, he stated "he thought it was a good idea anyway." Appellant also admitted placing the gun under the cover on the bench before the officers arrived.

¶7 At trial, the woman who had been on the balcony ("R.S.") testified that, on the night of the shooting, she and her boyfriend ("W.W.") were "hanging out" with Appellant on Appellant's balcony. Appellant became upset, went inside, and returned to the balcony with a gun in his waistband. After stating that he was "going to do this," he "pointed the gun up and he shot the gun." Almost immediately, police officers arrived and told everyone to place their hands up. Appellant quickly tried to hide the gun as the police approached. According to R.S., the gunshot was "pretty loud," and made her "scared and nervous."

¶8 W.W. testified that on the night of the shooting, he and R.S. had taken a bath at Appellant's apartment, and while other people were inside the apartment, he, R.S., and Appellant went onto the balcony to visit and drink beer. Appellant became angry at R.S. for taking a bath at his apartment without his permission, "so he goes inside, gets the gun and comes out and he says, `I'm serious about doing it. I'm really serious.' And all of a sudden he cocks the gun and shoots it up in the air." W.W. testified that when the gun fired, the noise really bothered him and caused him to be "shaken" and "scared."

¶9 To establish at trial that Appellant was a prohibited possessor, the State called his former probation officer, who testified that Appellant had been placed on felony probation. Additionally, the court admitted into evidence a partially redacted certified copy of the sentencing minute entry for Maricopa County Cause No. CR2006-108328-001DT, submitted by the State, which indicated that, pursuant to a plea agreement, Appellant had been convicted of a felony and placed on probation. Appellant's probation ultimately ended in the spring of 2009, and the court also admitted into evidence a certification from the clerk of the superior court indicating that Appellant's civil right to possess a firearm had not been restored.

¶10 Appellant chose not to testify at trial. The jury found Appellant guilty as charged and that Counts I and II were dangerous offenses. The State waived a hearing before the jury with regard to the aggravating factors previously alleged, and after determining the State had proven the existence of the alleged historical prior felony conviction for enhancement purposes related to Count III, the trial court sentenced Appellant to concurrent, presumptive terms of 2.25 years' imprisonment in the Arizona Department of Corrections for Counts I and II, and 4.5 years' imprisonment for Count III. The court also credited Appellant for thirty-six days of presentence incarceration. Appellant filed a timely notice of appeal.

II. ANALYSIS

A. Appellant's Request for Change of Counsel/Continuance

¶11 Appellant argues, "During my Trial process, the judge denied me the right to hire private counsel." Appellant's argument is that the trial court erred by refusing to grant a continuance to allow private counsel he purportedly retained (Mr. Ross Anderson) to replace his appointed counsel (Mr. Rick Tosto) and represent him at trial.

¶12 On the afternoon of the first day of trial, before jury selection and after Appellant had represented to the court that morning he was ready to proceed to trial, Appellant sought a continuance for the purpose of allowing substitute counsel to enter an appearance and represent him.4 When the court asked the basis for his request, Appellant explained, "Well, actually, your Honor, I got no time for the trial now because I got my furniture and my apartment. And I'm [a] very sick man. I['ve] got lot[s] of problems." The court further pursued its query, asking why Appellant had previously failed to raise these issues before the court, and why "this gentleman [Mr. Anderson] says he needs to appear on your behalf." Appellant responded, "I don't know how to answer, your Honor. I have no idea. I don't know how to answer that question."

¶13 The court then asked defense counsel, Mr. Tosto, if he wished to elaborate on the basis for Appellant's request. Defense counsel explained that the motion to continue listed six pre-trial tasks Appellant believed were necessary and had not been completed,5 but counsel described the list as "completely inaccurate," discussed in detail how he had addressed each of the items, and concluded, "So I don't know what I haven't done on this case that has been alleged in this case. But I can tell you, as far as numbers one through six in this motion to continue, [they] are completely inaccurate, off base and should be part of the record."6

¶14 The court denied Appellant's motion to continue and limited notice of appearance as untimely, and asked Appellant to articulate "whether or not there is some reason that you don't feel comfortable with Mr. Tosto representing you." Appellant ultimately confirmed that he wished to proceed with Mr. Tosto as his counsel. The court subsequently stated that it would still consider a motion to substitute counsel if Mr. Anderson could "set forth that he's prepared to proceed forward to trial and represent [Appellant]." No such motion was filed.

¶15 We find no error, much less fundamental error, in the trial court's denial of Appellant's last-minute request for a continuance for the professed purpose of changing counsel. See generally State v. Dixon, 126 Ariz. 613, 616, 617 P.2d 779, 782 (App. 1980) ("The right to assistance of counsel, while fundamental, may not be employed as a means of delaying or trifling with the court." (citation omitted)). Appellant was represented by appointed counsel throughout all stages of the proceedings, including trial, and without addressing the adequacy of his appointed counsel, we note that the record suggests that even "an attorney with unlimited time for preparation and the highest degree of professional skill could not have affected the overwhelming nature of the evidence in this case." Id. The court's decision to deny Appellant's request for a continuance on the first day of trial for the purpose of ultimately allowing a change of counsel does not in this case constitute error, much less fundamental, reversible error.

B. Appellant's Request for an Interpreter

¶16 Appellant also argues, "During the Trial process, the judge denied me an interpreter."

¶17 Appellant's argument stems from a request he made on the third and final day of trial. Defense counsel stated that Appellant had, "about a moment ago . . . brought to my attention he feels more comfortable with an interpreter, should he testify." Counsel also noted that, with the exception of two earlier "probation matters," Appellant had not utilized an interpreter in his prior court appearances, including in cases from 2006 and 2008. The court asked Appellant, who speaks both Arabic and English, why he had not made the request earlier, and Appellant claimed that he had not asked the court because he had broached the subject with both the prosecutor and his attorney several weeks prior.7 He admitted, however, that he had no trouble understanding previous proceedings or anything the court said to him, but then further stated that "some conversation I can't understand because [English] is my second dialect."

¶18 The court then took a recess. When the court returned, it stated that it had reviewed the superior court's records involving numerous court appearances by Appellant, and noted that the records failed to "indicate any concern or request for an interpreter," including in 2006 when Appellant had entered a plea agreement with the State. The court also found Appellant's request for an interpreter untimely, and after determining "in an abundance of caution" that no Arabic interpreter was still available that day, denied Appellant's request. The court clarified its ruling by stating that it was "not making its decision based on the availability of the [A]rabic interpreter," but on its conclusion that Appellant had failed to raise "an actual issue with needing an interpreter, considering the past record." Appellant ultimately opted not to testify.8 We find no error, much less fundamental, reversible error in the court's decision not to delay the final day of trial to procure an interpreter for Appellant.

¶19 "It is axiomatic that an indigent defendant who is unable to speak and understand the English language should be afforded the right to have the trial proceedings translated into his native language in order to participate effectively in his own defense, provided he makes a timely request for such assistance." State v. Natividad, 111 Ariz. 191, 194, 526 P.2d 730, 733 (1974). A failure to provide a necessary interpreter would effectively deny a defendant his due process rights to a fair trial and constitute fundamental error. See id. In general, we will adhere to the trial court's discretion whether an interpreter is required, because that court "is in the best position to determine whether a defendant possesses the requisite degree of fluency in the English language." Id.

¶20 In this case, Appellant points to nothing in the record to suggest that he was unable to sufficiently comprehend the evidence and procedure. Also, neither Appellant nor his counsel ever suggested that they were unable to communicate with each other throughout the duration of the trial. In fact, the record, including Appellant's conversations with the court throughout trial, supports the court's conclusion that Appellant failed to raise "an actual issue with needing an interpreter," and we find no abuse of discretion, much less fundamental error, in the court's decision not to appoint an interpreter. See id. There is no evidence in the record suggesting that the court's denial of Appellant's last-minute request for an interpreter interfered with Appellant's constitutional rights or in any way caused him prejudice.

C. Appellant's Other Issues

¶21 Appellant next argues as follows:

Appellant's arguments appear to be that the weight of the evidence supported his version of the events, the jury should not have found the prosecution's witnesses credible, and he received ineffective assistance of counsel.

¶22 The jury, as the finder of fact, weighs the evidence and determines the credibility of witnesses. State v. Fimbres, 222 Ariz. 293, 297, ¶ 4, 213 P.3d 1020, 1024 (App. 2009). In general, we defer to the jury's assessment of a witness's credibility and the weight to be given evidence. See id. at 300, ¶ 21, 213 P.3d at 1027. After reviewing the entire record, we find no error, much less fundamental error, in the jury's possible reliance on the testimony of R.S. and W.W. as witnesses for the State. Further, even without their testimony, substantial evidence, including the testimony of the police officers and Appellant's own statements, was presented to support Appellant's convictions.

¶23 Finally, as to Appellant's ineffective assistance of counsel claim, this court does not consider claims of ineffective assistance of counsel on direct appeal. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). Instead, such claims must first be presented to the trial court in a Rule 32 petition for post-conviction relief. Id. (citing Ariz. R. Crim. P. 32).

¶24 We have reviewed the entire record for reversible error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881; Clark, 196 Ariz. at 537, ¶ 30, 2 P.3d at 96. The evidence presented at trial was substantial and supports the verdicts, and the sentences were within the statutory limits. Appellant was represented by counsel at all stages of the proceedings and was given the opportunity to speak at sentencing. The proceedings were conducted in compliance with his constitutional and statutory rights and the Arizona Rules of Criminal Procedure.

¶25 After filing of this decision, defense counsel's obligations pertaining to Appellant's representation in this appeal have ended. Counsel need do no more than inform Appellant of the status of the appeal and of his future options, unless counsel's review reveals an issue appropriate for petition for review to the Arizona Supreme Court. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Appellant has thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review.

III. CONCLUSION

¶26 Appellant's convictions and sentences are affirmed.

RANDALL M. HOWE, Judge, DIANE M. JOHNSEN, Judge, concurring.