NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

CHRISTIEN MARSHAI PETTY, Appellant.

No. 1 CA-CR 18-0062

Appeal from the Superior Court in Maricopa County

No. CR2015-111701-003

The Honorable John Christian Rea, Judge

AFFIRMED

COUNSEL

Bain & Lauritano, Glendale

By Amy E. Bain

Counsel for Appellant

Arizona Attorney General's Office, Phoenix

By Michael Valenzuela

Counsel for Appellee

FILED 3-7-2019
STATE v. PETTY

Decision of the Court

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MEMORANDUM DECISION

Presiding Judge James B. Morse Jr. delivered the decision of the Court, in 

which Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined.

M O R S E, Judge:

¶1 Christien Marshai Petty timely appeals his second-degree 

burglary conviction and the resulting sentence. After searching the entire 

record, Petty's defense counsel identified no non-frivolous, arguable 

question of law, and in accordance with Anders v. California, 386 U.S. 738 

(1967), and State v. Leon, 104 Ariz. 297 (1969), asked this Court to search the 

record for fundamental error. Petty filed a supplemental brief in propria 

persona, arguing among other things that the superior court violated his 

right of confrontation. Because the question of Petty's right of confrontation 

was an arguable issue for review, we requested that the State and defense 

counsel address this question in supplemental briefs to this Court. See

Penson v. Ohio, 488 U.S. 75, 83-84 (1988) (requiring representation on appeal

when reviewing court determined that the record supported arguable 

claims). Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 On March 11, 2015, residents in Ahwatukee called 911 and 

reported that they saw three suspicious individuals in their neighborhood. 

These residents would later testify that they observed three men in their 20s 

drive up in a gray Dodge Charger, retrieve and don high-visibility safety 

vests from the trunk of the Charger, cross a nature preserve, and run 

through backyards, jumping over fences. One resident saw that one of the 

individuals started to return to the Charger carrying a pillowcase. Upon 

responding, police observed the gray Dodge Charger and individuals who 

matched the 911 callers' descriptions in safety vests, who fled the scene on 

foot after seeing the police. Police also observed that an alarm was going 

off in one of the houses, and they saw that the back door had been smashed 

open. Inside the targeted home, officers saw that most of the house was 

very clean, but the master bedroom looked like it had been "ransacked." 

Responding officers also found a hand towel, a sock, and a safety vest

nearby, apparently left by the suspects. The owners of the house—the 

witness ("Witness") and her husband—were not at home at the time, but

they drove in soon afterwards and walked through the house with the 
STATE v. PETTY

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police. Witness saw that jewelry was missing from her and her husband's 

dressers.

¶3 Upon searching the Charger, police officers found two 

drivers’ licenses, one of which belonged to Petty, and some fingerprints on 

the trunk that matched Petty's. Police officers arrested Petty and two other 

suspects later that day, and they found that Petty had jewelry and a key to 

a Dodge vehicle. Witness later identified this jewelry as belonging to her 

and her husband.

¶4 Before trial, Witness and her husband moved out of Arizona, 

and the State requested that she be allowed to testify by videoconferencing

because she needed to care for her husband, who suffered from dementia 

and other ailments. Defendant opposed this motion, but the court allowed 

Witness to testify via videoconference. At trial, her testimony established 

that jewelry was missing from her home, and she identified as hers jewelry 

that police officers found on Petty and others.

¶5 Petty was convicted of burglary in the second degree, a class 

3 felony, and sentenced to the presumptive term of 6.5 years in prison. Petty 

timely appealed. 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.

DISCUSSION

I. Right of Confrontation

¶6 The Confrontation Clause of the Sixth Amendment

guarantees defendants the right to a face-to-face confrontation with 

witnesses at trial. Maryland v. Craig, 497 U.S. 836, 844 (1990). The 

requirement for a physical, face-to-face confrontation can be done away 

with "only where denial of such confrontation is necessary to further an 

important public policy and only where the reliability of the testimony is 

otherwise assured." Id. at 850 (allowing one-way closed-circuit television 

to "protect[] child witnesses from the trauma of testifying in a child abuse 

case").

¶7 In this case we need not decide whether the superior court 

erred by denying Petty the opportunity to physically confront Witness

because any alleged error was harmless. See State v. Henderson, 210 Ariz. 

561, 567, ¶ 18 (2005) ("Reviewing courts consider alleged trial error under 

the harmless error standard when a defendant objects . . . ."). Under a 

harmless error review, the State has the burden "to prove beyond a 
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reasonable doubt that the error did not contribute to or affect the verdict." 

Id.

¶8 At trial, the State was required to prove the elements of 

burglary in the second degree, i.e., that Petty "enter[ed] or remain[ed]

unlawfully in or on a residential structure with the intent to commit any 

theft or any felony therein." A.R.S. § 13-1507(A). The main contested issue 

at trial was identification: i.e., whether Petty was one of the men who 

burglarized the house. The testimony provided by Witness did not address 

identification and she explicitly stated that she did not know who broke 

into her home. Instead, although no witnesses specifically identified Petty 

as one of the suspects they saw on scene, the prosecution proved that Petty 

was involved in the burglary through circumstantial evidence. For 

example, evidence matched Petty to the description of the suspects at the 

scene, his fingerprints were found on the trunk of the Dodge, his drivers’

license was in the vehicle, and when he was later apprehended by the 

police, he had jewelry and a Dodge vehicle key in his possession. 

Moreover, a police officer testified that Petty stated that he was "hanging" 

with a friend near the house and that Petty acknowledged that he ran from 

the area, but denied breaking into the house.

¶9 The jury also heard testimony that the back door had been 

broken and forced open. See State v. Kindred, 232 Ariz. 611, 614, ¶ 11 (App. 

2013) ("[A] defendant's forced entry into a structure permits a jury to infer 

that defendant had the requisite specific intent for burglary.") (citing State 

v. Malloy, 131 Ariz. 125, 130 (1981)). Officers saw that while the house was 

clean and in order, the bedroom looked like it had been ransacked. Officers 

also found a sock and a towel, and police testified at trial that those items

could be used by burglars as a glove or to break windows.

¶10 The only material testimony offered by Witness was the 

identification of the jewelry that was recovered and her statement that she 

had not given anyone permission to enter the home. Because burglary does 

not require a completed theft and is committed by an unlawful entry with 

intent, her identification of the jewelry only indirectly related to an element 

of the offense.

1 Those elements were overwhelmingly proven by other 

 

1 A police officer also testified, without objection, that the jewelry 

recovered from Petty belonged to Witness. Although this testimony was 

based on Witness's identification of the property, Petty did not object below 

and has not challenged the admission of this testimony on appeal. Because 

the identification of the property was only indirectly related to an element 
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evidence of the circumstances of the offense (the safety vests, jumping 

fences, alarm going off, back door smashed open, fleeing suspects, and a 

ransacked bedroom). This circumstantial evidence established unlawful 

entry and the requisite intent to commit a theft. See id.

¶11 Accordingly, even without Witness's testimony, 

overwhelming evidence showed Petty had committed each of the elements 

of the charged burglary. Accordingly, we hold that any error in allowing 

Witness to testify remotely was harmless.

II. Fourth Amendment Claim

¶12 Petty also claims that the police violated his Fourth 

Amendment rights by illegally searching the Dodge Charger. Under the 

"automobile exception," officers may search a vehicle if they have probable 

cause to do so, even without a warrant. Collins v. Virginia, 138 S. Ct. 1663, 

1669-70 (2018). At the time the police searched the vehicle, they had

evidence that the Charger had been used by burglary suspects: an officer 

saw one of the suspects walk toward the Charger and then flee on foot when 

he saw the officer, and a neighbor who called 911 pointed out the Charger 

to the police. Thus, the officers had probable cause to search the vehicle

and did not violate Petty's Fourth Amendment rights.

III. Ineffective Assistance of Counsel

¶13 Petty also claims his counsel's performance was deficient.

This Court will not consider claims of ineffective assistance of counsel on 

direct appeal. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002). Such claims must 

be first presented to the trial court in a petition for post-conviction relief. 

Id.

IV. Anders Review

¶14 In addition to the arguments presented in Petty's brief, we 

have searched the entire record and have not found fundamental error.

 

of the offense, and Petty's defense was based on whether Petty was one of 

the men who had entered the house, the admission of the officer's statement 

was not fundamental error. See Henderson, 210 Ariz. at 567, ¶¶ 19-20 (noting 

that defendant bears the burden of persuasion in fundamental error to 

show an error that goes to the foundation of the case and denied defendant 

a right essential to his defense) (citations omitted).
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CONCLUSION

¶15 Petty's conviction and sentence are affirmed. Defense counsel 

shall inform Petty of the status of the appeal and of his future options. 

Counsel has no further obligations unless, upon review, counsel finds an 

issue appropriate for submission to the Arizona Supreme Court by petition 

for review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984).

¶16 Petty has thirty days from the date of this decision to proceed, 

if he wishes, with an in propria persona motion for reconsideration or 

petition for review.