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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JAMES ROBERT SMALL, Appellant.

No. 1 CA-CR 16-0906

Appeal from the Superior Court in Maricopa County

No. CR2016-118717-002

The Honorable David O. Cunanan, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Joseph T. Maziarz

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Lawrence S. Matthew

Counsel for Appellant

James Robert Small, Eloy

Appellant

FILED 2-8-2018
STATE v. SMALL

Decision of the Court

2

MEMORANDUM DECISION

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

which Presiding Judge Michael J. Brown and Judge Jennifer B. Campbell

joined.

T H U M M A, Chief Judge:

¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967)

and State v. Leon, 104 Ariz. 297 (1969). Counsel for defendant James Robert 

Small has advised the court that, after searching the entire record, he has 

found no arguable question of law, and asks this court to conduct an Anders

review of the record. Small 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, Small’s convictions and resulting 

sentences are affirmed. 

FACTS1 AND PROCEDURAL HISTORY

¶2 Early on April 20, 2016, Phoenix police responded to a call 

regarding three suspicious individuals, each wearing a backpack, in

Phoenix. Officers went to the scene and, at approximately 4:00 a.m., 

contacted two males and a female. One of the three was Small, who also 

was wearing gloves. The officer who had contact with Small determined 

Small had an outstanding warrant and arrested him. A search of Small’s 

backpack incident to arrest revealed bolt cutters, a drill, batteries and a 

charger, screwdrivers, flashlights and a case with multiple identification 

cards and checks that did not contain Small’s name. The backpack also 

contained a bag with two containers, each containing a crystalline 

substance.

¶3 The arresting officer testified that, while removing these items 

from the backpack, Small indicated he wanted to cooperate. After reading 

Small his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), Small 

 

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 (1997) (citation omitted). The facts 

are based on the trial testimony as summarized in the briefs on appeal.
STATE v. SMALL

Decision of the Court

3

agreed to point out the locations of some burglaries. Small said that, while 

walking down various streets, the two other individuals removed property 

from cars and placed the property in Small’s backpack. Small then led 

officers to various locations, including the cars of F.L. and P.B.

¶4 F.L. testified that he was contacted by police on the morning 

of April 20, 2016 and saw that the glove compartment of his car was open

and papers were “scattered around.” F.L. testified that a checkbook and 

garage door opener were missing and he had not given Small permission 

to take those items. F.L. identified as his property a checkbook and the 

garage door opener found in Small’s backpack.

¶5 P.B. testified that he was contacted by police on the morning 

of April 20, 2016. P.B. testified that a drill, batteries and a battery charger 

had been taken from his car, and that the glove compartment had been 

“messed up a little bit.” P.B. identified as his property a drill and batteries 

that had been recovered by police, adding he never gave Small permission 

to possess the items.

¶6 N.B. testified that her car had been broken into in early 

February 2016 and her tax return and other items were taken. In April 2016,

she learned that the police had recovered a tax return containing her name, 

social security number and other information. No one other than the 

Internal Revenue Service had permission to possess the tax return, which 

was found in the backpack Small was wearing.

¶7 Another trial witness, M.D., testified her car was broken into 

in early February 2016 and “pretty much everything” was taken. In April 

2016, she learned a check with her name and other information had been 

recovered by police. She testified that a trial exhibit was a check containing 

her identifying information, although she was not sure if the check had 

been in the car in early February 2016. She testified she did not know Small 

and knew of no reason why he would be in possession of a check containing 

her identifying information.

¶8 An employee of the Phoenix Police Crime Laboratory testified 

that she tested the crystalline substance in the two containers, which was 

methamphetamine. Both contained more than one gram, but less than two 

grams, of the drug.
STATE v. SMALL

Decision of the Court

4

¶9 The State charged Small with two counts of burglary in the 

third degree, each Class 4 felonies; possession of burglary tools, a Class 6 

felony; aggravated taking of the identity of another, a Class 3 felony and 

possession or use of a dangerous drug, a Class 4 felony.

¶10 Small timely requested a voluntariness hearing. After an 

evidentiary hearing, the court found his statements were not the result of 

force, threats or coercion and were not involuntary and that his statements 

were admissible at trial. The State timely alleged aggravating 

circumstances; historical prior felony convictions and prior felony 

convictions constituting multiple offenses not committed on the same 

occasion and offenses committed while released from confinement.

¶11 Trial lasted four days. The State called numerous witnesses 

and various exhibits were received in evidence. After the State rested, Small 

moved for a judgment of acquittal, which was denied. As was his right, 

Small elected not to testify or to offer any affirmative evidence. After final 

instructions and argument, the jury deliberated and found Small guilty as 

charged. In the aggravation phase, among other things, the jury found the 

State proved Small was on probation for a felony offense at the time of each 

offense. At Small’s request, the jurors were polled and confirmed the 

verdicts.

¶12 At a December 2016 sentencing, after hearing testimony,

receiving evidence and hearing argument, the court found Small had three 

historical prior felony convictions. After considering a presentence report 

and argument, and Small’s statements, the court sentenced him as a nondangerous but repetitive (category three) offender to concurrent, 

presumptive prison terms, the longest of which was for 11.25 years, with 34 

days presentence incarceration credit. This court has jurisdiction over 

Small’s timely appeal 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) (2018).

2

 

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

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

Decision of the Court

5

DISCUSSION

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

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

for reversible error. See State v. Clark, 196 Ariz. 530, 537 ¶ 30 (App. 1999).

Searching the record and briefs reveals no reversible error. The evidence 

admitted at trial constitutes substantial evidence supporting Small’s 

convictions. From the record, all proceedings were conducted in 

compliance with the Arizona Rules of Criminal Procedure, and the 

consequences imposed were within the statutory limits and permissible 

range. 

¶14 Small’s supplemental brief asserts that his statements to 

police were not voluntary and that the grand and petit jury proceedings 

were “so compromised as to render the proceedings fundamentally unfair.” 

The court addresses these arguments in turn.

¶15 Small’s voluntariness argument is based on a claim that he 

made statements while in custody but before being advised of his Miranda

rights. Small, however, points to no inculpatory statements he made during 

that time. Indeed, as the superior court concluded at the voluntariness 

hearing, the record shows his inculpatory statements were made after he 

was advised of his Miranda rights, waived those rights and decided to 

cooperate with law enforcement. Although complaining that those 

statements were not recorded, Small cites no authority requiring that they 

be recorded. Nor has he shown that the superior court erred in its findings 

on the point. On this record, Small has shown no error.

3

¶16 Small’s grand and petit jury argument alleges that the jurors 

selected to serve in those two different roles were not selected from a fair 

cross-section of the population. Small, however, did not timely press such 

arguments with the superior court, meaning they are waived on appeal. See 

Padilla, 238 Ariz. at 564 ¶ 15. Furthermore, Small offers no record evidence 

supporting his arguments, other than pointing to the “name or surname” 

of the grand and petit jurors who were selected. Indeed, Small concedes 

 

3 The court rejects Small’s assertion on appeal about what he “would have 

testified” to at the suppression hearing or at trial, given that he elected not 

to testify and he was not prevented from testifying. See State ex. rel. 

Montgomery v. Padilla, 238 Ariz. 560, 564 ¶ 15 (App. 2015) (“’[A]bsent 

extraordinary circumstances, errors not raised in the trial court cannot be 

raised on appeal.’”) (citation omitted).
STATE v. SMALL

Decision of the Court

6

that, of the individuals who participated in voir dire, “the record is void of 

the ‘nationality’ of the impaneled-eligible members called” and there is no 

evidence suggesting the panel was not a fair cross-section. Nor has Small 

shown how Arizona v. Inter Tribal Council of Arizona, Inc., 133 S. Ct. 2247 

(2013) shows error in this case. On this record, Small has shown no error 

regarding the grand and petit jury in this case.

CONCLUSION

¶17 This court has read and considered counsel’s brief and Small’s 

pro se supplemental brief, and has searched the record provided for 

reversible error and has found none. Leon, 104 Ariz. at 300; Clark, 196 Ariz. 

at 537 ¶ 30. Accordingly, Small’s convictions and resulting sentences are

affirmed. 

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

inform Small of the status of the 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 (1984). Small 

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.