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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RAY EUGENE RIVERA, Appellant.

No. 1 CA-CR 13-0886

Appeal from the Superior Court in Maricopa County

No. CR2012-006669-001

The Honorable John R. Ditsworth, Judge

AFFIRMED AS MODIFIED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Joseph T. Maziarz

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Kathryn L. Petroff

Counsel for Appellant
STATE v. RIVERA

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in 

which Judge Patricia A. Orozco and Judge Michael J. Brown joined.

T H U M M A, 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). Counsel for defendant 

Ray Eugene Rivera has advised the court that, after searching the entire 

record, she has found no arguable question of law and asks this court to 

conduct an Anders review of the record. Rivera was given the opportunity 

to file a supplemental brief pro se, and has done so. This court has reviewed 

the record and has found no reversible error. Accordingly, Rivera’s

conviction and resulting sentence are affirmed as modified.

FACTS1 AND PROCEDURAL HISTORY

¶2 In March 2012, Rivera was charged by Indictment with first 

degree murder, a Class 1 dangerous felony (Count 1) or in the alternative 

second degree murder, a Class 1 dangerous felony (Count 2); attempted 

robbery, a Class 5 felony (Count 3); burglary in the third degree, a Class 4 

felony (Count 4) and theft, a Class 6 felony (Count 5).

¶3 At trial, the state presented testimony from 15 witnesses, 

DNA evidence and exhibits. The evidence showed that Phoenix police 

officers responded to a call at a store on the morning of June 9, 1998. When 

officers arrived, they found a man, later identified as H.R., lying behind the 

counter of the store.

2 H.R. had bruises and abrasions on his body, had 

suffered a fatal gunshot wound to the chest and had apparently been bitten 

on his ear and shoulder. Police found the missing piece of the victim’s ear 

 

1 This court views the facts “in the light most favorable to sustaining the 

verdict, and resolve[s] all reasonable inferences against the defendant.” 

State v. Rienhardt, 190 Ariz. 579, 588–89, 951 P.2d 454, 463–64 (1997) (citation 

omitted). 

2 Initials are used to protect the victims’ and witness’ privacy. See State v. 

Malonado, 206 Ariz. 339, 341 n.1 ¶ 2, 78 P.3d 1060, 1062 n.1 (App. 2003).
STATE v. RIVERA

Decision of the Court

3

behind the counter. A bullet casing and a water bottle with a broken seal 

were found in the area. Subsequent analysis showed the bullet casing could 

have been fired from the type of gun that H.R. owned. No gun was found. 

¶4 Although there were no witnesses, the police viewed a 

surveillance video from security cameras at the store. The video showed a 

man with a water bottle enter the store, interact with H.R. and then leave.

Several minutes later, the man returned, got behind the counter and fought 

with H.R. (who possessed a gun). Officers who watched the video 

commented on a round tattoo located above the man’s right hand.

¶5 The State’s witnesses testified that the use of DNA for 

criminal investigation was in its infancy in 1998. Samples were, however,

collected from the scene to preserve possible DNA evidence. In May 2009, 

a detective reviewing the case determined that further testing was 

appropriate to see if any DNA could be found on the victim’s shirt, the

water bottle found at the scene and a swab taken from the victim’s ear. The 

detective asked that any DNA profiles revealed from the testing be entered 

into the national Combined DNA Index System (CODIS) database. 

Testimony indicated that the partial DNA profile from the swab of the 

victim’s ear matched the partial DNA profile from the water bottle. 

¶6 In March 2012, the case was assigned to another detective 

who learned that information from the CODIS database identified Rivera 

as a possible suspect. This detective compared a July 18, 1998 photograph

of Rivera to the man in the surveillance footage and noted certain 

similarities. In April 2012, two detectives went to California, where Rivera 

was thought to be living. The detectives interviewed Rivera and testified to 

several of Rivera’s distinguishing tattoos, one of which appeared visible on 

the June 9, 1998 surveillance footage. 

¶7 During the interview, Rivera admitted to using heroin and 

shoplifting in order to buy drugs in the past. Although admitting to 

working in Arizona at various times, Rivera denied being in Arizona in 

early June 1998 and denied ever being at the market. The detectives 

ultimately arrested Rivera in California on these Arizona charges and he

was then extradited to Arizona. Buccal swabs were later taken from Rivera 

for DNA comparison purposes. 

¶8 A series of photographs of Rivera were taken in September 

2012, showing his tattoos were similar to those in the 1998 photos. During 

trial, Rivera complied with a request to display a tattoo on his wrist for the 

jury. A forensic scientist testified that the partial DNA taken from the water 
STATE v. RIVERA

Decision of the Court

4

bottle and H.R.’s ear matched Rivera’s DNA profile and gave statistics 

regarding the “proximate incidence in this profile or this type of match.”

¶9 L.C., who had been in custody with Rivera leading up to the 

trial, testified pursuant to a testimonial agreement. L.C. stated that Rivera 

bragged to him about how he was going to beat the charges against him

because the surveillance footage was choppy. L.C. stated that Rivera 

claimed to be “drug sick” from heroin withdrawal during the relevant time 

in June 1998 and needed money. Rivera told L.C. that the victim was an 

older “chump” who he thought would be an easy target. However, when 

Rivera demanded money, H.R. insulted him and began to reach under the 

counter; in response, Rivera jumped over the counter. L.C. testified that 

Rivera said he was able to grab H.R.’s hand to keep him from firing a gun 

and that he was able to turn the weapon toward H.R., squeeze H.R.’s hand 

and fire the bullet that killed H.R. L.C. testified that Rivera told him he sold 

the gun for drug money. 

¶10 The jury found Rivera guilty on all charges; found the first 

degree murder offense was a dangerous offense and made aggravating 

factor findings on some of the other offenses. The superior court sentenced 

Rivera to life in prison, with no possibility of release until 25 calendar years 

were served, for first degree murder (Count 1) and dismissed the second 

degree murder charge (Count 2). The court imposed prison terms for the 

other convictions, concurrent to the sentence on Count 1.

¶11 After sentencing, by stipulation, Rivera’s convictions and 

resulting sentences for all convictions other than first degree murder were 

set aside because the statute of limitations for those convictions had expired 

before trial. This court has jurisdiction over Rivera’s timely appeal from his 

first degree murder conviction and resulting sentence pursuant to the

Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes 

(A.R.S.) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1) (2015).3

 

3 Absent material revisions after the relevant dates, statutes and rules cited 

refer to the current version unless otherwise indicated. 
STATE v. RIVERA

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DISCUSSION

¶12 This court has reviewed and considered counsel’s brief and 

Rivera’s pro se supplemental brief, and has searched the entire record for 

reversible error. See State v. Clark, 196 Ariz. 530, 537 ¶ 30, 2 P.3d 89, 96 (App. 

1999). Searching the record and briefs reveals no reversible error. The 

record shows that Rivera was represented by counsel at all stages of the 

proceedings and counsel was present at all critical stages. The evidence 

admitted at trial constitutes substantial evidence supporting Rivera’s 

conviction for first degree murder. From the record, all proceedings were 

conducted in compliance with the Arizona Rules of Criminal Procedure. 

The sentence imposed was within the statutory limits and permissible 

range. The court’s review of the record reveals three issues that merit 

further discussion. 

¶13 First, the photographs of Rivera admitted at trial without 

objection showing his tattoos were taken while he was in jail clothes. 

Identity was an important issue in this case and Rivera’s multiple tattoos 

were key in identifying him as the suspect in the surveillance tape. Thus, 

the photographs showing his tattoos (including where Rivera is wearing 

jail clothing) were important to help the jury identify the suspect in the 1998 

surveillance footage as being Rivera. Furthermore, given L.C.’s testimony, 

the jury was aware that Rivera had been in custody for these charges and 

thus it cannot be said the photographs were unfairly prejudicial. See State v. 

Murray, 184 Ariz. 9, 35, 906 P.2d 542, 568 (1995) (finding no prejudice where 

jury learned defendants were arrested and spent time in custody before 

trial). The photographs do not show Rivera in any restraints. Moreover, the 

evidence was that these photographs were taken after Rivera was charged 

with the current offense, and therefore did not suggest that he had been in 

custody previously. Accordingly, the admission of these photographs was 

not error, let alone fundamental error resulting in prejudice. See State v. 

Henderson, 210 Ariz. 561, 567 ¶¶ 19–20, 115 P.3d 601, 607 (2005).

¶14 Second, Rivera’s pro se supplemental brief argues ineffective 

assistance of trial counsel. Such a claim, however, can only be raised in postconviction proceedings and not on direct appeal. State ex rel Thomas v. Rayes, 

214 Ariz. 411, 415 ¶ 20, 153 P.3d 1040, 1044 (2007).

¶15 Finally, Rivera was given 540 days of presentence 

incarceration credit. However, he was arrested in California for the murder 

charge here on April 4, 2012 and extradited to Arizona on April 19, 2012 

and held in custody continuously. After being given a continuance, he was 

sentenced on November 15, 2013. Therefore, Rivera is entitled to 590 days 
STATE v. RIVERA

Decision of the Court

6

of presentence incarceration credit, reflecting the time from his arrest in 

California to his sentencing, and the judgment is modified accordingly. See

A.R.S. § 13-712(B).

CONCLUSION

¶16 This court has read and considered counsel’s brief and 

Rivera’s pro se supplemental brief, and has searched the record provided 

for reversible error and has found none. State v. Leon, 104 Ariz. 297, 300, 451 

P.2d 878, 881 (1969); State v. Clark, 196 Ariz. 530, 537 ¶ 30, 2 P.3d 89, 96 (App. 

1999). Accordingly, Rivera’s conviction and resulting sentence are affirmed

as modified. 

¶17 Upon filing of this decision, defense counsel is directed to 

inform Rivera of the status of his appeal and of his future options. Defense 

counsel has no further obligations unless, upon review, counsel identifies 

an issue appropriate for submission to the Arizona Supreme Court by 

petition for review. See State v. Shattuck, 140 Ariz. 582, 584–85, 684 P.2d 154, 

156–57 (1984). Rivera shall have 30 days from the date of this decision to 

proceed, if he desires, with a pro se motion for reconsideration or petition 

for review.